Medical decisions when there's no power of attorney

[Nyborg]

Can anyone help with this question? A friend's elderly mother has dementia and didn't set up an EPA/LPA in advance. The friend thinks that her mother would no longer be considered to have capacity to make her own decisions (it's advancing very quickly, sadly). I don't think the "deputy" system where the Court of Protection can appoint someone to take a decision on your behalf kicks in for health/welfare decisions - just for financial decisions.

So who does make these decisions? Is it my friend as NOK, or the medical team, or both? If not them, then who?

[Optimist1]

I'm pretty sure it's the next of kin, but hopefully someone with definitive knowledge will be along shortly to reassure you. Sad situation.

[whataboutbob]

Hello Nyborg. From what i understand NOK does not give legal power to make decisions on behalf of the person. In reality, even if your friend had POA (replaces EPA now)for health and welfare, she would not be able to determine single handedly the course of her mother's care if for example doctors felt what she wanted was not in her mother's best interests.
I've worked in the NHS for 20 odd years, and my Dad has dementia. So I have seen it from both sides. In practice medical and social care staff try and take family's perspective and wishes into account whether there is a POA or not. How much a particular relative can sway care is in practice often dependent on their articulateness, knowledge of health care and hospital procedures, and levels of personal charm and persuasiveness. Doesn't necessarily sound fair I know.

[MrsCharlesBrandon]

Yes, Levels of charm are why i sorted out care for my late Grandmother rather than her NOK. My DF has all the charm of a brick wall.

It actually took until GM was hospitalised with a chest infection for the Dr to concede that she couldn't look after herself. At that point she was increasingly paranoid, aggressive, and was refusing to eat. She had had daily care at home until that point.
The SW took our wishes and evidence into account, but explained that it was ultimately their decision as to what happened. Thankfully GM went into a lovely nursing home and was well looked after until she passed.

My father had been in control of her finances for a few years by that point, but had no POA. She died peacefully in the home last April.

[whataboutbob]

YesMrsCharles.I have sat in on a best interests meeting for my Dad and been told explicitely the final decision would not be mine (as I don't have POA for health and welfare). But i knew that would be the case when I attended the meeting, I'd also mentally prepared for it and was clear about what I wanted the outcome to be. I played it reasonable, articulate with a dash of humble and it went the way I wanted. If I'd gone in all guns blazing, hostile and also with my own agenda and not necessarily what was best for Dad, it would probably have played out differently.

[BelladonnaBlue]

Hi Nyborg, The Court of Protection deputy system does have provision for deputies to make health and welfare decisions depending on the type of deputyship granted and the current need . Your friend can apply for a Hybrid deputyship, which would enable her to act in regards to both property & affairs and health & welfare.

[mamadoc]

NOK is not a legal status.
Under the mental capacity act if a person lacks capacity decisions are made in their best interests. For medical decisions that would be the Drs or nurses for decisions about care it would be the social worker.
There is a legal duty to consult the family about any serious medical condition or about a change of residence. If the person has no family or there is a dispute then an IMCA (independent advocate) is instructed.
So basically the care team decides but it would be highly unusual to explicitly go against or disregard family opinion.