Enduring powers of attorney – Providing consent for those who can no longer consent for themselves

Lucy Gibberd, Medicolegal Consultant at Medical Protection, spells out the basics of the conditions under which an enduring power of attorney (EPOA) can be set up, the situations where it may be activated, and the limits of what can be consented to using an EPOA.

A recent HDC case found a doctor in breach of the Code of Health and Disability Services Consumers’ Rights because they did not adequately assess their patient’s capacity with regard to setting up an enduring power of attorney (EPOA). In 2018, the doctor saw a patient and provided a certificate stating that the patient, who had been diagnosed with dementia, lacked the capacity to make decisions regarding her financial and medical wellbeing. The doctor did not conduct a formal assessment of the patient’s capacity prior to issuing the certificate. The patient’s partner then contacted the doctor and explained that the certificate provided was not what the solicitor required. He explained that he required a certificate stating whether the doctor deemed the woman to have the mental capacity to appoint him (the partner) EPOA. The doctor then provided a certificate stating the patient had capacity to appoint an EPOA, despite the lack of a formal assessment and the previous certificate stating the patient lacked capacity to make decisions about finances and health. The Commissioner found that by failing to perform a formal

assessment of mental capacity to appoint an EPOA and certifying the woman’s mental capacity to appoint an EPOA, contrary to the previous certificate, the doctor failed to provide services to the woman that complied with legal and professional standards. Over the past few years, Medical Protection has seen an increasing number of cases related to issues with setting up, activating, and using EPOAs. While the issues in the case above pertain to contradictory certificates provided without any formal assessment, the decisions in these cases can often be complex and difficult, and we encourage doctors to discuss such situations with Medical Protection or their medical defence organisation (MDO). Many people believe that their ‘next of kin’ would be able to provide consent on their behalf if they were no longer able to do so, but this is incorrect. In general, an EPOA (or guardianship order) is required to provide the legal basis on which a person can consent on another adult’s behalf.

An EPOA can be set up by someone who has mental capacity to choose whom they wish to consent to act on their behalf in the future, should they lack capacity at some later date. When a person sets up an EPOA, they are known as the donor. At the time of setting up an EPOA, the donor must have the capacity to understand, retain, and reason through the information required to make a decision to appoint an EPOA. The person who is chosen is usually a family member or close friend, but can be a lawyer or a trustee company such as the Public Trust. The attorney must be at least 20 years old, not bankrupt, and mentally capable. Setting up an EPOA must be witnessed by a lawyer, or legal executive, or by the authorised representative of a trustee company. An EPOA ceases having effect as soon as the donor dies. At that point, the executor of the estate takes over as the legal representative of the deceased person. There are two separate forms of EPOAs: one that can be set up for use regarding personal care and welfare, and the other which covers financial and property decisions. These two separate EPOAs do have some unique features.

Enduring power of attorney for property

• More than one individual can be named as the EPOA for property and can be mandated to act either jointly or separately. • The donor can choose that the

EPOA for property comes into effect immediately (while the donor still has mental capacity), or that it only becomes effective if and when the donor lacks capacity to manage their own affairs.

• A ‘successor’ attorney can be named to take over if the initial attorney dies, withdraws, or becomes incapacitated themselves.

Enduring power of attorney for personal care and welfare

• An attorney for personal care and welfare will have the power to make decisions on medical treatment, where the donor lives, and whether they need to go into residential care.

This is a very significant position, and people need to choose someone they trust completely to make the best decisions on their behalf.

• Only one person can be named as the attorney, which means this position cannot be jointly held. A successor attorney can be named, as with an EPOA for property. • An EPOA for personal care and welfare cannot be activated while the donor still has capacity. Before the EPOA is formally activated, the appointed attorney can make a decision on the donor’s behalf if the decision which the attorney is making is minor, and they have a reasonable belief that the donor lacks capacity.

If the decision is a major one (such as choosing where a person is going to live), a doctor’s certificate is required either to activate the EPOA or to confirm that the donor lacks the capacity to make that decision. • Even when an EPOA has been activated, the donor may still have the capacity to make some decisions for themselves, and they should be consulted about decisions to the extent that they are able to understand.

• The attorney cannot consent to brain surgery or electro-convulsive treatment provided for the purposes of changing your behaviour. They also cannot consent to experimental treatment, unless it could save the donor’s life or prevent serious damage to their health. • The attorney is required to always act in the donor’s best interest, and cannot direct that lifesaving treatment, or treatment to prevent serious damage to health, should be withheld. This means if a patient wishes not to be resuscitated, they must set up an advance directive, rather than relying on their EPOA to be able to refuse consent on their behalf. Health practitioners may become involved with EPOAs at various points: • They may be asked to perform an assessment to ensure a person has the mental capacity to set up an EPOA.

• They may be asked to provide a certificate to say whether the patient now lacks capacity, thus allowing an

EPOA to be activated.

• When there is a legal conflict within a family, they may be asked to retrospectively describe a person’s mental capacity at a point in the past, when they were not asked to perform an assessment at the time.

This situation contains a number of pitfalls, and we would suggest you contact Medical Protection (or your

MDO) to discuss such requests before providing any response. When performing a capacity assessment, the doctor needs to be clear what the decision is for which the patient’s capacity is being assessed. Capacity is decision specific; a person may have capacity to decide they wish to undergo a specific treatment but may not have the capacity to manage their financial affairs. When performing a capacity assessment, the decision in question should be clearly stated and the assessment should be directed towards clarifying the patient’s capacity to understand, retain, and reason through the information required to make that specific decision. Sometimes these assessments can be straightforward and can be performed by any clinician, and there are some good resources that can help with performing and documenting such assessments. In complex cases, or cases where the patient’s capacity is borderline and the consequences of the decision are significant, it may be best to refer the patient to a psychiatrist, neuropsychologist or psychogeriatrician. Medical Protection members who need more specific information about EPOAs can contact us on 0800 225 5677.

REFERENCES

1. Health and Disability Commissioner. 2021. Doctor’s failure to assess mental capacity of dementia patient. https://www.hdc.org.nz/decisions/ search-decisions/2021/20hdc00126/ 2. Hawke’s Bay District Health Board. nd. Performing Capacity Assessments:

Information for GPs. http://hawkesbay. health.nz/assets/Publications/

Performing-Capacity-Assessmentselectronic-booklet.pdf

Douglass A, Young G, McMillan J. 2016.

A Toolkit for Assessing Capacity. http://www.aspenltd.co.nz/mc/assets/

Capacity%20Toolkit.pdf