Recent reports concerning Sir Ranulph Fiennes have attracted significant media attention and, perhaps more importantly, prompted wider questions about lasting powers of attorney (LPAs), deprivation of liberty and who ultimately has authority to make decisions for vulnerable adults.
What is the background to the case?
According to media reports, Sir Ranulph is at the centre of a dispute about his care arrangements, his contact with others and whether the restrictions placed on him have been properly authorised. It is reported that Care Inspectorate Wales concluded he was being deprived of his liberty without the necessary legal authorisation, and his wife’s conduct as his attorney is now under scrutiny.
The case provides an opportunity to look at some common misconceptions about health and welfare LPAs, and the safeguards that exist when there are concerns about the care of someone who may lack capacity.
Health and Welfare LPAs
A health and welfare LPA allows a person, whilst they have capacity to make this decision, to choose who will make decisions about their care and welfare if they later lose the ability to do so. Rather than leaving important decisions to professionals, or to disagreement within the family, the donor decides in advance whom they trust.
The authority under an LPA is not unlimited. Attorneys are bound by the Mental Capacity Act 2005. They must presume the donor has capacity to make a particular decision unless it is shown otherwise, and the donor does not lack that capacity just because their decision is unwise. The attorney must also support the donor to take part in decisions wherever possible. Like any best interests decision maker, every decision an attorney makes on the donor's behalf
must be in their best interests, not just whatever the attorney wishes
must take account of the donor’s wishes, feelings, values and beliefs
must involve appropriate consultation with those “engaged in caring for [the donor] or interested in their welfare” (which of course includes the professionals involved in their care); and
must consider if there is a less restrictive way to meet the donor’s best interests.
Crucially, therefore, an attorney does not acquire unfettered control over another person's life. They take on a legal duty to use their powers responsibly, proportionately and in the donor's best interests, making decisions collaboratively with professionals and others who know the donor best, and with any dispute referred to the Court of Protection.
And, of course, the decisions an attorney can make are strictly limited by the scope of the authority given to them by the donor, as well as whether the LPA itself if properly registered with the Office of the Public Guardian.
Perhaps the most important point arising from the reports into Sir Ranulph’s case is that an attorney cannot authorise a deprivation of liberty. A health and welfare attorney may be able to make best interests decisions about where someone lives and what care they receive but, however strongly an attorney believes it necessary, they have no power to authorise restrictions that might amount to a deprivation of liberty. Where arrangements for someone who lacks mental capacity amount to a deprivation of liberty, a formal authorisation with independent scrutiny is required, and the care home and local authority are responsible for this process, through the Deprivation of Liberty Safeguards (DoLS).
Decisions about life-sustaining treatment
An attorney is also limited when it comes to decisions about life-sustaining treatment. An Attorney can only refuse life-sustaining treatment on the donor's behalf if the LPA expressly gives them that authority. An LPA would defer to any Advance Decision to Refuse Treatment that has been made by the patient. This allows someone to refuse specific treatment, planning ahead for a time when their capacity to make such a decision for themselves at the time has been lost, and this can include life sustaining treatment if it is put in writing and witnessed. (These are sometimes call a ‘Living Will’, but it is much better to stick to the terminology of ADRT, since treatment can only be refused, not demanded).
A valid Advance Decision to Refuse Treatment will be binding on healthcare professionals, whatever the patient’s family prefer, and regardless of whether a health and welfare Attorney has been appointed for other decisions.
Supervision of Attorneys
Every attorney, whether for health and welfare or for property and finances, remains under the supervision of the Office of the Public Guardian, and the jurisdiction of the Court of Protection. When a dispute arises about a person's care, where they live or how their finances are managed, it is ultimately the Court that decides. The Court can investigate an attorney's conduct, give directions, and suspend or revoke the appointment in serious cases.
The Office of the Public Guardian can investigate concerns and refer matters to the Court, but only the Court can revoke an LPA. For families and for public bodies, this provides a formal route for raising concerns about the conduct of an attorney, and there is an obligation on those involved in someone’s care to raise concerns if it is felt that an attorney is not acting in the donor’s best interests.
What safeguards can be put in place?
The Fiennes case illustrates that the law can only act on what has been properly recorded.
The strongest safeguards are put in place long before mental capacity is lost. An LPA can be a powerful legal tool that can be tailored to your wishes and family circumstances, but should never be viewed as a blank cheque.
Choose attorneys for their judgement and openness as well as their trustworthiness, and consider appointing more than one attorney, with at least one replacement. An LPA can specify that all decisions, or specific decisions, can only be made jointly, if there is more that one attorney appointed.
In blended families and second marriages in particular, appointing a spouse alongside a child or a trusted friend can provide balance and a second view.
Preferences and Instructions can be recorded in an LPA, for example about the care you would like to receive and the people you wish to keep in contact with. It is also advisable to make an Advance Decision to Refuse Treatment if you have strong views about particular treatments. Both documents must be made while you have capacity, so it is sensible to consider them in good time and to review them as your circumstances change.
