When is a health lasting power of attorney useful?

[tonbridgecat]

Hello

Slightly depressing topic but when are lasting powers of attorney for health useful? I think the donor has to have lost capacity for the LPA to come into play, but what does the LPA enable the attorney to do? agree treatment? Agree admission to a care home? Sort out care packages?

thank you.

I had POA for my dad, he had no mental capacity at all. At times it was completely ignored by HCP/ Social Services, to the extent that they went with the wishes of a different relative who didn’t hold POA for him.
It was actually useful when I needed to make a Subject Access Request, to get all the information SS held on him. From that I could see SS had acted unlawfully, had written some “interesting” things about myself, and they were made to issue a formal apology to our family. Without the POA I wouldn’t have been allowed the SAR.

In short, POA can be useful or ignored completely, depending on who you are dealing with.

Like nannyl- it gives you a bit more of a voice when it really matters. Unlike NewspaperTaxis my view is that the default is to over-treat and prolong life too much - you have a chance to prevent that with PoA.

Well this is illegal, what they've done! I'm sure you don't have the energy to do so, but you really could make a massive fuss about this.

If you can, have a read of the government's mental capacity act guidance. It'll help you understand that a POA for H&W isn't about it being useful for you, it's about your loved one knowing their interests can be protected if they lose capacity to make any decisions. It means you act on their behalf for consent and decision-making. I am my mum's POA so she knows I can legally fight for decisions to be as close to what she would choose as I can make them.

I am in Australia so no doubt slightly different rules but I have a health guardianship and financial power of attorney for my aunt. Currently moving her to a care home and organising mail redirections, care home details, health instructions to staff and selling her house. I have not used the health guardianship once but use the financial power of attorney for pretty much everything.

In my experience as a HCP, LPoA for health and welfare is only at useful as the person who holds the position.

Frequently the power of attorney will just look at me and say, but what would you do? Which is not what it is about.

I think there should be some sort of compulsory course attached to taking on the position of power of attorney so that people know what question they might expect to answer in what circumstances.

I was my dad's LPoA and we had many conversations about what he expected me to do should he have no capacity (brain tumor), including the likely scenario of developing an infection, his answer was to withhold antibiotics. As it was he maintained capacity until the end and refused his own antibiotics and passed away a few days later. That's the kind of thing you will be asked.

Also as a LPoA you need to be confident and assertive enough to stand up to the busiest, curtest, bullying consultant to advocate for your relatives needs. This is why i have a advanced directive for myself, rather than a LPoA because i don't have any one i trust enough to advocate for my needs without the risk of them being pressured into conforming to current NHS culture of quantity of life over quality.

Remember it is not just health... the welfare part allows discussion (especially with carers and nursing homes) about daily routines, hair care, foot care, pastoral visits from the vicar etc. They know you have the authority to speak on the residents behalf because they have seen the POA.

In my experience LPA for H&W is much more formalised than NoK. While many clinical teams will involve family in discussions, NoK is not a legal entity so does not have the same access to information or rights to being involved. Where there are differences of opinion across families, the PoA has the ability to override this and act in the person's best interests.

The only time NoK legally comes into play is when you need to section someone. Ans even then it can be overturned.

In our case the GP was the biggest issue. Would not discuss health concerns. On the one hand this was right in terms of patoent confidentiality, on the other hand it meant that concerns we flagged were routinely ignored until crisis point.

Ah, that is another layer of problem.

For instance, at Epsom General Hospital they pulled strings to ensure Dad wouldn't leave alive or otherwise would have to go into a care home, the idea was to have him stuck there and deteriorate to force the issue. We forced the issue by getting the consultant onside which infuriated the then matron - this was on the ACU ward if I recall, and she tried to stop it, going to all lengths. This included having a tall, unsociable NHS worker stoop down in front of Dad when he was in his wheelchair to ask, all friendly, if he wanted to go home? If Dad had said no, suddenly his word would be enough and he'd be stuck there.

In other words, if he agrees with them when put on the spot, he has mental capacity, otherwise if he disagrees with them he does not have mental capacity so his word doesn't count.

Now we anticipated this crap and had a hard copy of the LPA in Health and Welfare about our person, something I suggest you all have in these situations plus on your Smart Phone too to email it.

But... and I hate to say this, there is an argument that you still need to activate the LPA in Health and Welfare and this may necessitate a friendly family doctor to authorise this. Unfortunately some GP practices now refuse to do this - we got it done anyway but you could also argue it makes it clear your parent is also far gone and therefore deserves to be put on end of life care if so, you have to get it worded correctly. I don't like to say this but anyone in the NHS could read this and say, ah, you've got LPA in Health and Welfare but have you activated it?

Btw we got Dad out and he lived another six months but the next time he entered Epsom General Hospital they got him, he was toast within 3 days. I'm not saying he was in a great way at that point at all, but we'd rather he'd gone at home not in Mary Seacole Ward.

Exactly. The exact circumstances and people / medics involved will vary for each person needing health and welfare decisions made for them so the LPA won’t be taken into account identically in every situation. But without it you are just another voice in the mix and the drs oath to preserve life may well take precedence. With the LPA you have more power to decide to discontinue treatment if that is what your relative would want.

I found it really useful for my mother and stepfather. Particularly for him because when he was admitted to hospital for kidney failure, I told the doctor that had said he no longer wanted to live without her. She said that she would not transfer him to ICU with that being the case. He died peacefully 4 days later.

The health POA was essential when my mum’s dementia worsened and it helped me to make decisions which were in her best interests rather than what suited Social Care and hospital staff. It gave me the choice of the care she had at home and later more choice of a care home, rather than having to accept the cheapest option that social care offered, and I was able to agree exactly how she would be looked after in her care home, her routines, meal preferences etc. It also meant that I was consulted fully during my mums final weeks in hospital after a stroke before they carried out any procedures. I was able to agree the DNA, have full access to all her medical records as soon as I showed the POA to hospitals, doctors, the care home, and social care

there is an argument that you still need to activate the LPA in Health and Welfare and this may necessitate a friendly family doctor to authorise this...anyone in the NHS could read this and say, ah, you've got LPA in Health and Welfare but have you activated it?

There is no such process as "activating" a health and welfare LPA. It is active from the day it is registered. It cannot be used until and unless the donor has lost capacity, but this would be assessed on a case by case basis (the donor may have lost capacity to make some major decisions but may still have capacity to make more simple decisions, or they may have a delirium that causes them to lose capacity temporarily but will regain capacity to make their own decisions in a few days). A letter from your GP stating the LPA is "active" or that the donor lacks capacity would be meaningless and would carry no legal weight. It is the duty of each health/social care practitioner to judge at the time of the decision whether the person has capacity to make the decision themselves or whether the decision should be delegated to the holder of LPA.

Also, when there is a delay in the processing of an application at the Attorney office (approx 3 months currently), evidences of power of attorney having been applied for, whilst not legally binding, should still form part of the decision making process by health professionals.

In my recent experience this happens in hospital too. Mum died of sepsis three weeks ago after doctors ignored obvious signs of infection as soon as they spotted possible cancer. No antibiotics for nearly 24h and no fluids for 36h. So it’s either wilful, or negligence.

OP to answer your question, the ICU doctor who eventually treated Mum (too late) wanted to see POA for health before he’d take seriously our comments on her condition.

There is no “activation” needed. It needs to be registered and that takes time, but not “activated”.

I should add - when Mum developed sepsis the doctor persuaded her at 2am to agree to DNR, against all her previous wishes. Because we had POA we could dispute that - in the end it didn’t help her (and there were limits to what steps they could take given the condition she was in) however for some people it might be of benefit.

LPA doesn't give the holder authority to insist that the donor be resuscitated. If the doctors don't feel resuscitation is appropriate then they don't need to offer it. They have to consult with family (regardless of whether you hold LPA or not) but ultimately if they feel resuscitation would be futile then they will not resuscitate.

I'd be interested to know frankly.

DH and my SIL were DMIL's attorneys. We provided a hard copy of the documents to the hospital as,soon as she was admitted, and to the care home to which she was discharged. She had dementia and had lost capacity completely.

When it came to it, she was sent back to hospital by the care home against her express wishes and those of her attorneys after the care home manager refused to offer end of life care . Once there, the hospital ignored the family completely, refused to speak to the attorneys, resuscitated her, again against her express wishes and kept her alive on a glucose drip and oxygen for another two weeks until DH was finally able to confront the consultant. MIL died five days after that meeting, the promised end of life care never having materialised.

DH now has incurable cancer and I know he is worried about ending up in the same hospital.

My friend's father has lost capacity and his Social Worker is responsible for very aspect of his care, including choosing a suitable care home, despite the fact that he (father) is paying for it himself.

This means a home has been chosen that makes travelling to visit very difficult for my friend.

That said, SW has been correct to overrule some of her choices, which would have been largely made for financial reasons IMO.

For me, and the elderly lady I used to hold PoA for, it was very helpful to have reasonable chats with her medical team. She almost certainly had advanced cancer, but was clear when she had capacity that she wanted no investigations, and lived in what was probably quite severe pain due to her preference not to engage with medical professionals.

Once she lost capacity, her medical team did talk to me about scanning her for cancer and providing (what was expected to be) palliative treatment. However, as holder of her PoA, I was able to express that this action didn't match her wishes. It did mean that we could work together to agree a symptom and observational based pain management plan, and we could finally get a handle on the pain so she was pain free for the first time in decades.

I found the medical team very respectful and pragmatic about her wishes (as expressed by me), and the driver was really making her comfortable as the pain which she'd previously "gutted through" was extremely distressing to her as she progressed down the dementia path. We all felt that allowing her to continue living in that pain was completely unethical.

This is interesting to read. We did both legal and medical for my mother in law but made a mistake on the health so it wasn’t accepted and I never got around to sorting. She named me, my DH and SIL so in terms of differing opinions it wouldn’t help. Hopefully we are all on the same page so it won’t cause any issues.

I am so sorry for your loss @MiniMaxi especially as it is so recent and raw.

I obviously don't know about your mum’s age or general health. However if I were given the choice for myself of a long slow deterioration and death from cancer or a 3 day deterioration from sepsis I would choose sepsis.

My dad died at 83 a couple of years ago. He had heart failure and was heading towards kidney failure and had reached the point his meds were not working and he had swollen legs and torso and there were no medical options. He was facing 2-3 months of deterioration before he died. But he then got a suspected UTI - he had blood in his urine. While doctors tried to grow a culture to identify what bacteria was causing the infection so they could try and give him the antibiotics which were least damaging to his kidneys he died suddenly one night in his sleep. I think the UTI tipped the strain on his body too far. Now the shock has gone I am grateful he didn’t have to go through that last terminal decline with him knowing he wasn’t going to get better. A fast, unexpected exit can be a good exit for the person it happens to compared to the alternative.

I’m very sorry for your loss too, @Choux

Thank you - will send you a DM to avoid derailing the thread.

We realised we needed it for my mum during Covid - her dementia had been diagnosed but she was still living at home at that point and had been managing pretty well. It came to a point when she had queued for a while for the first round of Covid jabs and had got cold and tired so by the time she got to the front of the queue was quite confused, and couldn’t answer when the person administering the vaccine asked if she understood and gave consent. Because we didn’t have POA at that point, we couldn’t consent on her behalf and it was all a bit distressing and exhausting.