Can GP overrule power of attorney?

This question (“Can GP overrule power of attorney?”), may be informed by two further questions: 1. “is the person who gave the Power of Attorney, capable of making the decision themselves” and 2. “is the decision in the best interests of that person”?

  • Attorneys must act in the best interests of donors.
  • Attorneys may not decide death is in the best interests of a donor.
  • Health and Welfare LPAs may only be used when a donor lacks mental capacity.

Lasting Powers of Attorney (“LPAs”) are documents which allow individuals to grant powers, in advance, to those that they trust, to act on their behalf, should they lose the mental capacity to do so.

The person making the LPA i.e. giving the powers, is called the “donor”. The person acting on their behalf is called “the attorney”.

There are two types of LPA: the first (the Property and Finance LPA) deals with financial matters and the second (The Health and Welfare LPA), with matters relating to health. We will assume, for the purposes of answering the above question, that it refers to a health and welfare decision made, under a Health and Welfare LPA.

Decisions made by an attorney under a Health and Welfare LPA: 1. Can only be made when the donor lacks mental capacity and 2. Must be made in the best interests of the donor, Mental Capacity Act (2005).

This brings us to a situation in which a GP may challenge an attorney’s right to make a decision, under a Health and Welfare LPA.

If, in the view of the GP, a donor has the capacity to make a decision themselves, it would be a very brave and/or foolhardy attorney that didn’t give serious consideration to the objection.

The Mental Capacity Act (2005) emphasises (Health and Welfare) LPAs’ use as a decision-making tool of last resort. A person is to be assumed to have capacity, unless it is established otherwise. Moreover, assumptions about capacity must not be made superficially on the bases of behaviours or appearance. Further, consideration should be given as to whether the person may gain the capacity, to make such decisions, in the future, and whether the decision in question can be delayed until then.

A GP may be integral to decisions around mental capacity. That is not to say the GP’s position should not be challenged, if an attorney feels that they are right.

A GP may also seek to overrule a decision relating to treatment, made by an attorney, on the basis that it is not in the best interests of the donor.

Attorneys may be given authority to make decisions around life sustaining treatments by a Health and Welfare LPA (this is not always the case). If so, these decisions must be made in the donor’s best interests (and critically not motivated by a desire to bring about the donor’s death). They must further take into account the wishes of the donor (and any named thereby), and refuse treatments that they are instructed to, by the LPA itself.

If a GP disagrees with the attorney’s decision, then they may overrule on the basis of a successful application to the Court of Protection. They must first discuss the decision with the attorney and seek a second opinion. While the court considers the matter, medics may administer treatments to prevent the donor dying or their condition worsening.

 

 

With the above in mind, it’s easy to see how a poorly drafted LPA can lead to conflict and delay around key decisions.  You should talk to a professional before creating these documents. Visit www.confidencewills.co.uk to find out more.