LPA instructions

[HeadOfWipes]

Hi, anyone have any advice about instructions on a health LPA? My dad (currently fit, well and living independently, 79) is applying for one with me as attorney, but I fear the legally binding Instructions he wants to add in could potentially be restrictive further down the line. In particular, it's this line about residential care - 'My attorneys must not decide the I am to move into residential care unless my doctor says that I can no longer live independently.' I'm an only child and very much plan to honour my dad's wishes to consider residential care only as a last resort, but it's impossible to know what's round the corner and I wonder if putting this in Preferences instead, to leave some flexibility, would be a better option. Has anyone had any experience with this or encountered any issues? Thanks

I have four POAs, although only two are active at the moment. None of them go into that much detail, and nor would I have agreed to them if they did. I’ve made sure that I’m clear on each relative’s wishes in terms of DNR (and checked that they understand what resuscitation is like), active treatment vs being kept comfortable.

@HeadOfWipes
I would be concerned about the attorneys not being able to decide on residential care.
If someone is in hospital and ready for discharge and there’s some doubt about their ability to live independently there would usually be a Best Interests meeting with the patient, doctors, occupational therapists, social worker and attorney to discuss if residential care is required.
However if the donor is living at home and not managing with visiting carers it would be difficult to arrange admission to a care home with this clause in place. You would probably need social services to assess and agree. Another issue is whether the donor has mental capacity to decide where they should live. If they do they wishes can’t be overridden even if it’s deemed to be a bad decision, as long as they can understand the consequences.
Are the LPAs being prepared by a solicitor?

It's honestly best to have as few directions and restrictions as possible. Otherwise they are unwieldy and a bit useless. If he doesn't trust you, you probably shouldn't be his LPA.

Plus in the community the GP isn't the decision maker on whether you go to a care home, it's a social worker. Unless you are self funding and even then the expert on whether it is manageable at home will be the OP based on how exhausted she is.

I read lots of advance statements that have things like 'if 2 doctors agree' and honestly it just isn't how modern healthcare works.

I don’t think this is a problem as such TBH. If he has capacity then his wishes will stand. If he no longer is deemed to have capacity then his ‘wishes’ will not. In that case, a decision will be made at a professionals meeting with the attorney present if possible. If the attorney says he should stay at home and others do not agree, then he will likely be placed in a home. An attorney cannot simply override the decision of professionals.

The Social Worker will gather as much evidence as needed - so a doctor is highly likely to be consulted, firstly to help determine capacity, to diagnose possible dementia etc.

A Health POA should have zero or very few conditions attached. Medical science moves quickly and nobody can anticipate what treatments may be available in the future.

I was attorney for my mother for ten years (I'm an only child too).

I would not have agreed to being attorney with those conditions, IMO it is worse than not having POA because it explicitly puts obstacles in the way of doing things that may be necessary. It would probably be difficult to get a doctor to give an opinion on him moving to residential care, and the delay could put him at risk.

It is a big responsibility and commitment to be attorney, and you need to be able to make difficult decisions without additional barriers in your way. If someone did not trust me to make those decisions, they should not ask me to be attorney.

The thing is if he still has capacity and says ‘I’m not going into a home’ there is nothing the attorney can do. It doesn’t override the wishes of the person. It just gives you options to make the decisions if he no longer has capacity and allows you to liaise with the doctors but while he still has capacity his wishes take precedence.

Social worker will at most look at a medical letter with a diagnosis on. It's rare to get a GP at a Best Interests meeting as they are swamped.

I am a doctor and am able to go to this sort of meeting in my role - the social worker won't accept my capacity assessment as they do their own. We don't always agree but as the social worker is the decision maker, it's their decision that stands.

As a doctor, I can't tell a social worker what care to provide just as they can't tell me what to prescribe.

The whole point of a Health and Welfare LPOA is to hand the decision making power to the relatives you trust to make the right decisions for you, rather than relying on the state professionals to make those decisions.

It's not a doctor generally who makes the decision about residential care its a social worker. If he wants a social worker to make a decision about residential care not you then he he may as well save himself the cash and not bother with the LPOA.

Nope, not unless there was a very good reason to.

In my local authority we have some limited access to medical records so would be able to gather most of the information we need from there regarding diagnosis, meds etc.

In my experience many medical professionals can be very reluctant to make capacity decisions and feel quite unskilled in making those decisions unless it's a specific and regular part of their role.

I think I would refuse to take on the PoA on that basis.If he thinks I’m going to bung him in a care home for no reason, sell the house and take the money, better for a social worker to make the decisions for him (make sure that he understands that’s the alternative.

Ask him to write a supporting letter instead saying what is important to him in life. What actually worries him about residential care?

Thanks everyone for the replies, that's really helpful! I've also been feeling there's not much point having an LPA if it actually takes away my agency. Having quite recently had to wrangle with social services and doctors over my mum's care (we sadly lost her last year), I'm also wary of the potential delays/complications this could cause, especially if I need to make difficult decisions quickly. It's really useful to get other perspectives - thankyou. I think I'll argue my corner for keeping this line in as a Preference so that it's recorded but not legally binding. Fingers crossed!

Hopefully he trusts you more than a social worker so decides to reword the LPA - it would be a hassle not to have one in place but would also mean you can step away from any decision making!

OP, I type these documents for my job and we put wishes re: care homes, medical treatment etc in the “preferences” box. It’s very rare we put anything, even with PFA LPAs, in the “instructions” box.

I wouldn’t trust an ordinary social worker to assess anyone’s capacity. People with dementia, who are no longer capable of looking after themselves, can be very convincing for short periods. I have seen at first hand one such person insisting that they could still manage this or that, and the SW taking their words at face value.

TBH even if they’ve had dementia training, many people without direct experience still don’t understand the practical realities. Hence I’ve even had a GP telling me that if my mother couldn’t remember to take her medication correctly, I could always write down the timings for her, or ring to remind her.
No conception that having read any note, she’d forget as soon as she turned her eyes away, ditto the phone - she’d forget almost as soon as she’d hung up.

As if I couldn’t have thought of anything so simple! 😡

Thanks for your advice everyone. I talked it through with him again and I think he'd misunderstood that the instructions would be legally binding - agreed to change it to preferences, especially when I pointed out the difficulties with a doctor having final say. So useful to have all of your advice on this, always trust your instincts if it doesn't feel right! Thanks again ☺️

The thing is, though, a person who is no longer able to look after him/herself, but still has capacity, may often wish that care will be carried out by a family member or members, and may well not wish to pay anyone else to do it. This is not at all uncommon.

In which case IMO such family members are fully entitled to place limits on what they are prepared (or not) to do.
In such cases a person’s ‘wishes’ will not automatically trump their needs.

By the time a POA comes into effect, the person is unable to make decisions for themselves. So your Dad's wishes wouldn't really count as he will already have been deemed unable to make his own decisions.

So my advice to you would be not to worry about it. He's trying to cover himself for making decisions when he will be incapable of doing so, which is pointless (although understandable).

My agreement with my parent regarding residential is that if they are a danger to me or themselves, or if they have medical/other needs that cannot be provided at home, then they go into residential permanently. We talked at length about it before they lost capacity.

They are currently in residential temporarily whilst I have some respite (I'm live-in) and are doing really well. It's been a revelation tbh. Self funding so I'm fortunate to be able to have respite and afford a lovely place for them.