A patient who chooses (or is required) to provide an enduring power of attorney usually only does so under extreme circumstances. The nature of ceding a portion of one’s individual power over one’s health is no small matter, and comes with a significant amount of legislature that any medical practitioner must be able to navigate competently to provide the best (and most legal) level of care to said patient.
This is what you, as a medical practitioner, need to know.
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Under the Protection of Personal Property Rights Act 1988 (“PPPRA”) an individual known as the “donor” has the power to formally grant to another person an Enduring Power of Attorney (“EPA”) to act on his or her behalf.
There are two types of EPA. The first is in relation to property rights and as a medical practitioner, you would not normally encounter this type of EPA. There is no requirement that the donor be mentally incapable in relation to this type of EPA; a donor may appoint anyone to act if they wish to do so.
The second type is an EPA in relation to welfare, otherwise known as a “welfare guardian”. The welfare guardian has significant powers, however, these can only be invoked when the donor loses mental capacity. The paramount consideration of the welfare guardian is the promotion and protection of the welfare and best interests of the donor.
Under section 98 of the PPPRA, the significance of the decision to be made on behalf of the donor has a bearing upon how the health practitioner deals with the EPA.
In relation to a significant matter relating to the donor’s personal care and welfare, the attorney can only act if a health practitioner has certified, or the Court has determined, that the donor is mentally incapable. A “significant matter” includes any matter that is likely to have significant effect on the health, wellbeing or enjoyment of life of the donor; for example, a permanent change in the donor’s residence, entering residential care, or undergoing a major medical procedure. (s98(3)(a)).
In respect of any other matter relating to the donor’s personal care and welfare, the attorney must believe on reasonable grounds that the donor is mentally incapable (s98(3)(b)).
The timing of the determination as to mental capacity is important. Clearly there are some medical conditions where capacity may change over time. The relevant time is that at which the decision relating to the donor’s personal care and welfare is being made (s 3A).
A certificate may state that the donor is certified as mentally incapable because of a health condition that is likely to continue indefinitely, in which case no further certificates are required (s98(3B)(a). Alternatively, the certification can be stated to apply for a specified period of time (s98 (3B(b)).
An attorney may, but does not have to, give regard to any advance directive given by the donor (s99A(2)).
An attorney may seek directions from the Court (s101) and the Court can itself appoint a welfare guardian (s12)
Only one welfare guardian may be appointed in relation to any donor unless there are exceptional circumstances (s12(6)). A welfare guardian has to be aged 20 or above (s12(4)).
There are a number of restrictions upon what a welfare guardian can decide; specifically they cannot:
Current as at 24 October 2018
For more information about your responsibilities while working with enduring power of attorney, get in touch with our medico-legal advisors now.