Hannah: Planning for the future is even more important after a diagnosis of dementia, having
Lasting Power of Attorney for Health and Welfare allows the Attorney to make decisions on your
behalf if there comes a time when you are unable to make these decisions for yourself.
Hello I’m Hannah and in this edition of the podcast I speak to helpline advisor Vicky
about Lasting Power of Attorney for Health and Welfare.
She’ll also be giving her thoughts on the ‘Your answers’ section of Living with
Dementia magazine from February/March 2016.
Hannah: What is a Lasting Power of Attorney for Health and Welfare?
Vicky: A Lasting Power of Attorney, which is shortened to LPA - is a legal document
that allows an individual to choose a person they trust to make decisions for them if there
was a time in the future when they cannot and there are 2 types of LPA, one for health
and welfare decisions and the other for decisions about the person’s property and finances.
Hannah: Who can make an LPA?
Vicky: To make an LPA you must be over the age of 18, have the capacity to make this
decision and so this means that you are deciding for yourself that you wish to make an LPA,
and you understand what it means.
When making an LPA you are referred to as the ‘donor’.
Hannah: What happens when someone has set up an EPA or Enduring power of attorney already?
Vicky: LPAs are part of the Mental Capacity Act 2005, and only came into force in October
2007.
Before this people created EPAs, these only covered managing a person’s finances and
property.
All EPAs made before October 2007 are still valid and can still be registered.
LPAs are only valid in England and Wales, there is a different system in Northern Ireland
and these are called the Enduring Power of Attorney.
Hannah: What is the difference between an LPA for health and welfare and LPA for personal
welfare?
Vicky: The LPA for health and welfare is also referred to as LPA for personal welfare; the
two are exactly the same.
The reason for this confusion is because the Mental Capacity Act (MCA) and the MCA Code
of Practice both refer to this type of LPA as personal welfare.
Whereas the OPG LPA form calls it LPA for health and welfare.
It’s important to note that whatever people refer to them as they are the same thing.
Hannah: What is the role of the attorney?
Vicky: An attorney is the person appointed by an individual who is making an LPA – (the
donor) - to make specific decisions for them regarding their health and welfare.
The attorney can make decisions relating to the person’s care and treatment and this
covers a wide range of decisions, when making the decisions the attorney is acting as though
they are the person and so is able to make the decisions the donor themselves would have
made.
Hannah: Who can be an attorney?
Vicky: You can choose anyone to be your attorney, as long as they are over 18.
This is different for LPA property and financial affairs the attorney cannot previously have
been declared bankrupt, that’s the difference for that one.
It is essential to think carefully about who you may appoint.
The role of the attorney involves a great deal of responsibility and power so it’s
important to choose a person you can trust.
Think carefully about who you believe would be able to carry out the role and make decisions
in your best interests is reliable and has the skills to carry out the role.
Most people will choose a relative or close friend, but you can ask a professional such
as an accountant or solicitor.
It is worth considering that a professional may charge for their time, and you need to
name an individual rather than an organisation or company.
The person who agrees to be the attorney must also sign the LPA form.
When making decisions, your attorney must follow the Mental Capacity Act.
This means that they: Must act in your best interests, must consider your past and present
wishes and cannot take advantage of you to benefit themselves.
You can choose to have more than one attorney whereby you must decide how your attorneys
will act.
They can make decisions together, they can act together and separately, or a combination
of the two.
You can also appoint a replacement attorney.
This is the person you would like to make decisions for you if your first choice attorney
is no longer able or willing to be your attorney.
If the attorney fails to comply, the LPA must be cancelled.
If an attorney has taken advantage of you, this will be investigated by the OPG and the
person could be prosecuted.
Having an LPA in place can therefore offer you protection from potential future abuse.
Hannah: What happens when someone doesn’t have a person who can be their attorney for
health and welfare?
Vicky: If there is no one who is able to speak on your behalf, such as a family member or
a friend, an Independent Mental Capacity Advocate (IMCA) must be provided to protect your rights.
An IMCA cannot make decisions on your behalf instead it is their role to represent your
thoughts and feelings when important decisions are made.
An IMCA will be notified from the NHS or local council for example doctors, social workers
and care home staff.
An IMCA must be involved when decisions relate to life sustaining medical treatment or decisions
about where a person will live and there is no one else such as family or friends that
can do this.
An IMCA may be consulted about a care review or adult protection procedures.
Hannah: What decisions does the LPA for health and welfare cover?
Vicky: An LPA for Health and Welfare allows a person, who is the donor, to choose a person,
called the attorney, to make decisions relating to their care and treatment if they were ever
unable to in the future; this can cover a whole range of things.
To use a LPA for Health and Welfare it must be registered, and an attorney can only use
their power if the person lacks capacity to make the specific decision.
The MCA Code of Practice states that an attorney may make decisions about: Consenting to, or
refusing medical assessments or treatment on the donor’s behalf, arrangements needed
for the donor to be given medical, dental or optical treatment, assessments for and
provision of community care services, where the donor should live and who they should
live with, deciding the donor’s day-to-day care, including diet and dress and deciding
on the person’s leisure activities, that is say what they do in their spare time, accessing
personal information such as medical records and care plans.
A attorney must be consulted when a care plan is being devised for the donor, and they should
agree to it.
When a care plan is drawn up for a person that lacks capacity to consent to their care
plan, an attorney for health and welfare must be consulted.
Hannah: Does an LPA for health and welfare cover decisions about life sustaining treatment?
Vicky: An LPA for health and welfare only covers decisions about life sustaining treatment
if the person chooses this option when they created it; it is a specific question on the
form.
Hannah: What are the benefits of making an LPA for health and welfare?
Vicky: It can be reassuring to know that, if you are unable to make a decision for yourself
in the future, the person you have chosen to be your attorney will be able to make them
for you.
Making an LPA can help you to talk with others about your future wishes.
Making an LPA ensures that the person you want to make decisions for you will be able
to do so.
This prevents a stranger, or someone you may not trust, from having this power.
It can be more expensive and take more time for family and friends to try and gain a similar
power in the future.
Hannah: When a person lacks capacity can someone make an LPA for health and welfare?
Vicky: If there comes a time when you can’t make a particular decision, and you haven’t
created a LPA, the Court of Protection may need to become involved.
Although rare, it can be possible to become a deputy for health and welfare this can give
someone similar powers to that of an attorney.
This is because often when there is an issue it is usually about one decision, for example,
a decision about where someone will live.
The Court will decide to make the one-off decision rather than giving someone the continuing
power to manage the person’s health and well-being.
If someone were to apply to become a deputy the applicant must clearly show why a continuing
power is needed and why the person who lacks capacity needs a deputy for their health and
welfare.
A relative or friend can apply to be your Deputy, or a professional may be appointed.
The process of becoming a Deputy is a lot more time-consuming and expensive than an
LPA.
If someone is considering this they may wish to speak with the Court of Protection about
whether they should apply or not.
Usually decisions about care and treatment can be made without a legal power, and this
will be under the duties of the Mental Capacity Act, in particular that all decisions should
be made in the persons best interests.
Hannah: If someone were to complete the forms now, does it mean that they will no longer
be able to make decisions for themselves?
Vicky: No, this is because the purpose of the form is so that if you were unable to
make decisions in the future, your attorney can make these decisions for you.
If you make a health and welfare LPA, your attorney cannot make decisions unless there
comes a point where you cannot make these decisions yourself.
This is different for the property and affairs LPA, as for these types of decisions you can
decide that you want your attorney to act while you still have capacity, you would both
have the power to act and make decisions.
Hannah: What is the difference between an LPA for health and welfare and an advance
decision?
Vicky: If someone has an LPA for health and welfare and an advance decision to refuse
treatment there are set rules for which one is valid.
Someone may have both an advance decision and a LPA for health and welfare and so it
is important that the right one is used and takes precedence.
An advance decision only covers the refusal of treatment related to end of life care,
and so this issue of which is valid only comes up where the LPA for health and welfare includes
the ability of the attorney to make decisions about life sustaining treatment.
In these cases it will depend upon whether there is any guidance on the documents and/or
which was made last.
Hannah: What happens when someone is sectioned under the Mental Health Act and they have
an LPA for health and welfare?
Vicky: If someone is detained in hospital under the Mental Health Act, the MHA it’s
shortened to, the MHA takes precedence.
This means that an attorney for health and welfare cannot consent or refuse treatment
for a mental health disorder if the person is detained under the Mental Health Act.
Hannah: How would someone set up an LPA form for health and welfare?
Do you need a solicitor?
Vicky: Many people find that they are able to complete the form without legal help.
It is necessary to ensure that the form is checked through thoroughly as it is a legal
document; a mistake in the form may mean that the LPA will need to be resubmitted again
and will incur another administration fee.
The fee currently for registering Lasting Powers of Attorney for Health and Welfare
is £110, but there are exceptions for people on certain benefits or a low income.
However an LPA is a powerful legal document and you may wish to get advice from a legal
adviser with experience of preparing them; again costs are to be involved.
It can be helpful to look at the forms first and read the guidance notes to decide whether
you need legal advice.
Hannah: Where can you access the LPA forms?
Vicky: It is possible to access them online on the GOV.UK website and this includes guidance
and prompts as you complete the form.
If you would prefer you can download paper copies from GOV.UK website or have them posted
to you from the Office of the Public Guardian who can also send free guidance booklets.
On average it takes up to 12 weeks to register an LPA with the Office of the Public Guardian.
Hannah: What happens once you have completed the form?
Vicky: Once you have completed the form, you will need to get someone to sign it to state
that you have the mental capacity to make an LPA.
This means you have the ability to make this decision; you understand what an LPA is and
you made the decision yourself.
The signed form is a 'certificate of capacity' and the person is called the certificate provider.
They can be: A professional, such as your doctor, social worker or a solicitor or they
can be someone who has known you for two years, but is independent that isn't a family member
or an attorney and they will not benefit from the LPA, there is more information about this
in the guidance notes.
You also need to sign the form in front of a witness, and each attorney must sign the
form to say that they agree to act as your attorney if needed in the future.
They will also sign to show that they understand the duties this involves.
In addition, you are given the option to list one or more 'people to notify'.
This is someone who you want to be alerted if there is an application to register the
LPA.
This could be almost anyone, for example a friend or relative.
The purpose of this is to provide you with an additional safeguard.
It is only an option, so you can choose not to name someone, but many people like the
protection it can offer, and the reassurance of knowing that people will be kept informed
of what is happening.
Hannah: How would someone know if there is an LPA in place?
Vicky: In some situations someone may wish to check that someone is an attorney if they
claim they are so.
So it is possible to search the government registers to see whether someone has got an
attorney acting for them.
You would need to apply to search the Public Guardian register, complete a form and send
and send this to the OPG.
The information required to carry out the search would be the person making the application
name and address.
They would also need to provide the ‘donor’s details’ that is again the person with dementia,
their full name, date of birth and address.
An alternative address can also be provided, and this can be helpful if the person moved
since they have made an LPA.
Hannah: What organisations are useful when making an LPA for health and welfare?
Vicky: You can go to The Citizens Advice Bureau; they are often the best starting place for
advice, also through the Office of the Public Guardian, the Court of Protection, Solicitors
for the Elderly, Age UK or you could ring the National Dementia Helpline or contact
us on the email or the Live Online Advice service.
Hannah: In the February/March 2016 edition of ‘Living with Dementia magazine’ the
magazine of Alzheimer’s Society, the your answers section asked the question ‘What
to do if a person with dementia walks out of shops without paying for goods’.
In this section Talking Point members share their advice on what to do if a person with
dementia walks out of shops without paying for goods.
Aisha Rebecca said 'One suggestion could be to let the shop staff have a contact number
for yourself or someone close by, who could be the first port of call.
If they make a note of what the person is taking then you can go up to the shop later
and pay for the goods.
If they are unaware then you'd have to take things back or pay for all the things you
later find at home.
Or have a week's "tab" set up that they can take it off of when they walk out without
paying.
Basically it is all about awareness.
Make them aware of the person's condition and I have found that people are often understanding.
Vicky: This is a good suggestion as it helps the person with dementia keep to a familiar
routine.
If they were to be stopped from going to the shops it may lead to the loss of self-esteem;
confidence and independence.
Talking with the staff about the person’s dementia will help them have a better understanding
on how someone with dementia may behave.
Giving the manager a photo and or a contact number can help with this continuity of understanding.
The person with dementia could carry around a ‘Help card which we have at the Alzheimer’s
Society on which you can put down personal information and contact details of someone
who can help them they could also carry round an identity bracelet as well.
Arranging a tab for the person with dementia can work well with a local shop that you have
established a good relationship with.
Some supermarkets may have a pre-paid card /store card to use worth seeing.
Absolutely awareness is the key.
Encouraging others can help a community become more dementia friendly.
Hannah: Fellow traveller said, ‘When my husband, who has early-onset Alzheimer's,
was still able to do the family weekly shop at Morrisons by himself, he started to come
home with things without paying for them.
He'd load up the conveyor belt and chat away happily to the cashier.
Then take goods back off and put them in the bags in his trolley before they had gone through
the till.
My main worry was the stress it would cause him if the security guards accused him of
shoplifting, so we decided to try talking to Morrisons about it.
I made an appointment with the manager.
We went along together and met him.
He was brilliant.
He introduced my husband to his team of supervisors and explained that he had memory problems
and may need a bit of help.
It made us feel quite secure about my husband continuing to shop there – in fact it was
the last place he still went shopping independently.'
Vicky: This sounds like a very supportive experience for the PWD and those close to
them.
It’s important to help maintain a sense of normality for as long as possible
Hannah: Jeanie 73 said ‘I have found myself heading for the exit of a shop without paying!
Thankfully I was with my daughter who called me back.
It was not as if I was hiding things, as they were in my disability buggy basket and festooned
on the handlebars.
None the less, I would have been mortified if I had actually left without paying.
These days I rarely go out without my daughter to the shops.'
Vicky: What can be so upsetting and distressing for the person with dementia is the fact that
they are doing things very unusual to them; having someone there to support them can feel
reassuring as well as keeping that independence.
Hannah: See the full discussion thread on this topic on Talking Point.
Thank you for listening to the Alzheimer’s Society podcast.