8

MCA and the Office of the Public Guardian role

Lasting Power of Attorney for Health & Welfare

A person who lacks capacity may have appointed a Lasting Power of Attorney for Health & Welfare (LPA). This person(s) may have legally binding powers to make decisions on behalf of an individual, regarding medical care and treatment, including life-sustaining treatment, ongoing care provision, long-term changes to a care setting and any issues/complaints/safeguarding concerns regarding care provided.

Nurses and other health and social care practitioners need to ascertain if an individual has anyone nominated as an Attorney for Health & Welfare under a LPA, as these people play a vital and legal role and are likely to be the ‘decision-maker’ for the clinical decisions of people unable to consent to care and treatment themselves; they need to be involved in all clinical decisions and their opinion and decision sought by the clinical team and clinical decision-maker
(Griffiths 2017; NICE 2018).

As stated above, if an Attorney with the relevant powers exists, they are likely to be the decision maker, thus negating the need for the best interest decision process outlined below. Attorneys are still charged with acting in the individual’s Best Interests, but the professional role becomes one of support to the Attorney in making that decision rather than making the decision themselves.

It is important not to take the existence of LPA at face value. Professionals need to satisfy themselves that the LPA is registered by the Office of the Public Guardian and need to identify the scope of the powers donated. For further information see: https://www.gov.uk/government/organisations/office-of-the-public-guardian and https://www.gov.uk/find-someones-attorney-deputy-or-guardian

Number of Attorneys
The LPA allows the donor to nominate one or more people to act as their attorney. When more than one person is named as attorney, the donor must specify if they are to act ‘jointly’ or ‘jointly and severally’.

‘Jointly’

Attorneys who act ‘jointly’ must work together on all decisions. The LPA will become invalid if one of the attorneys is no longer able to act, for example if they become bankrupt or lose capacity themselves, and no replacement attorneys have been appointed.

‘Jointly and severally’

Another option is for attorneys to act ‘jointly and severally’- the attorneys may act independently, except where the donor has specified instances where they must make decisions unanimously.