||» Home|

» Search |  » Contact |  » Help |  » Site map

| Legal policy | Family matters | Mental capacity | Publications | Useful links | Civil matters | Criminal matters | Legal aid | CFAs and Legal Costs | Advisory bodies | International relations | Coroners and burials

Chapter 6: Continuing Powers of Attorney

The Law Commission recommended a significant extension of the existing system of powers of attorney and Enduring Powers of Attorney. Their final Report suggested an unified scheme to provide for substitute decision-making procedures. A Continuing Power of Attorney is recommended, which would allow an attorney to make decisions relating to personal welfare, health care and financial matters, even after the donor of the power of attorney has lost capacity. The Green Paper seeks views on the scope and nature of the proposed scheme, and on the appropriate safeguards.

 

Background
Continuing Powers of Attorney - definition and restrictions
The donor and the donee
Creating, amending, terminating and registering a CPA
Execution and registration requirements
Modification and termination of a CPA
Powers of the court
Miscellaneous

 

Background

6.1. The Law Commission's prime objective in this area was "to encourage people to take for themselves those decisions which they are able to take" (1). The Government fully supports this approach.

 

6.2. Powers of attorney already exist which allow for decisions to be taken on a person's behalf. The decision as to whether a power of attorney is to be given is one entirely for the donor, provided he or she fully understands the implications of what they are doing and the nature of the document they are signing.

 

6.3. There are two types of power of attorney:

 

firstly, an ordinary power of attorney, which can be given by a donor to an attorney or donee to deal with their financial affairs generally, or which can limit authority to specific matters. However, an ordinary power of attorney is automatically revoked by law when the donor loses his or her Mental incapacity to manage and administer his or her own property and affairs and accordingly the attorney's authority to act under the power ceases; and

 

secondly, an Enduring Power of Attorney (EPA). This form of power of attorney came into existence in 1986 following the passing of the Enduring Powers of Attorney Act 1985. This Act enabled people to decide who should look after their property and/or financial affairs if they became mentally incapable. Unlike the ordinary power of attorney, an EPA may continue in force after the donor has lost his or her Mental incapacity to manage and administer his or her financial affairs, provided it has been registered with the Public Trust Office.

 

 

The Law Commission's proposals

 

6.4. The Law Commission's proposals for continuing powers of attorney (CPA) are designed to build on the existing arrangements for powers of attorney, and to enable a person with capacity to set out instructions with regard to the decisions they wish to be made and the person they wish to make them at a time when they might subsequently lose capacity. The Law Commission regarded judicial intervention as a last resort, but they were concerned that there should be adequate protection for the donor of the power of attorney.

 

Continuing Powers of Attorney - definition and restrictions

6.5. At present powers of attorney can deal only with property matters. The Law Commission recommended that, under its revised and comprehensive code on Mental incapacity, there was a need for a form of power of attorney to be made with regard to personal and health care matters as well as property and finance. They thus recommended that a continuing power of attorney should be introduced to cover these areas also. This could grant the donee the authority to make decisions in all areas, including where the donor subsequently loses capacity.

 

6.6. The Law Commission's proposals that a CPA should be able to extend to matters regarding health, personal welfare and property and affairs (including the conduct of legal proceedings) (2) were unanimously supported on consultation.

 

 

House of Lords Select Committee

 

6.7. The House of Lords Select Committee took a different view in relation to proxy decision-making on health care matters, observing that, 'whilst the idea of the patient-appointed proxy is in many ways attractive, it is vulnerable to the same problems as advance directives, and indeed to a greater degree' (3). The Committee observed that personal relationships are not immutable, and that the choice of proxy might soon become out of date. In addition the Committee pointed out the practical difficulties of ascertaining what choice the patient would have made, and observed that previous statements of preference form an unreliable basis for future decisions.

 

6.8. A further point raised by the Select Committee was the difficulty in ensuring the objectivity of the surrogate decision-maker (even when acting in good faith). The Select Committee therefore did not favour the more widespread development of such a system.

 

6.9. On balance, the Government feels that the Law Commission's proposals contain sufficient safeguards to overcome many of the reservations expressed by the Select Committee. However, given these diverging views, the Government seeks views on whether it would be appropriate to legislate in this area.

 

Q52. Should the Government legislate to create a power of attorney so that the attorney is able to make decisions on health care and personal welfare matters?

 

6.10. The rest of this chapter invites views on the Law Commission's proposals, including those relating to decision-making on health care matters. This should not be seen as an indication that the Government has decided to pursue this option.

 

 

Decision-making by the donor

 

6.11. The Law Commission thought that the existence of a CPA should not prevent a person with limited capacity from being able to undertake functions of which he or she is capable, even if in some areas, this overlaps with the authority of the donee. They did not see the necessity for any restrictions on the action of the donor in such circumstances, as long as he or she has the capacity to make the decision in question.

 

6.12. The Government has some concerns about the practical implications of this proposal, and suggests a possible need for further safeguards to ensure the donee of a CPA does not use this authority unnecessarily where the donor retains capacity for particular decisions.

 

6.13. An attorney would incur civil liability where he breaches his duties as an attorney. For example, where he makes a decision which is outside the scope of the powers granted to him. The Law Commission recommended that the court should have power to relieve the attorney from some or all of his liabilities. In addition, where the attorney acts in accordance with the power without the knowledge that the donor has revoked it, the attorney is also to be protected. An innocent attorney is also to have protection where he relies on an invalid registered power of attorney.

 

6.14. Health care providers are to receive some protection if they act on a decision by an attorney which has been revoked and the revocation is unknown to them. They are not, however, to receive special protection from civil liability because they have acted in accordance with an attorney's decision. Health care providers are also to have protection where they rely on a decision made in accordance with an invalid registered power of attorney.

 

6.15. The Government considers that where an attorney consents to medical treatment which health care providers consider should be given to the patient in accordance with their clinical judgement, then that consent should be treated in the same way as the consent of the patient himself in so far as civil liability is concerned. The attorney should have similar protection from civil liability where he is permitted to make decisions relating to the special types of procedures which are considered in Chapter 5.

 

Q53. What safeguards would be needed to ensure these recommendations would work in practice?

 

 

The form of a CPA

 

6.16. The Law Commission recommended that, where a document purporting to be a CPA does not meet the statutory requirements, it should not be valid.

 

 

Acting in the donor's best interests

 

6.17. The Law Commission recommended that, although an attorney should not be under a general duty to act, where the attorney does act, he or she should be required to do so in the donor's best interests. This would be a principle which could be applied to all areas of decision-making which might be included, with the exception that if the attorney has been specifically authorised to consent to the discontinuation of artificial nutrition and hydration, procedures for the benefit of others and non-therapeutic research, they would need to have regard to the best interests guidance.

 

 

Statutory conditions and restrictions on a CPA

 

6.18. The main aspect of concern regarding a CPA is that it can be very wide and thus it may be difficult to ensure adequate safeguards. The Law Commission has dealt with some of these explicitly as follows.

 

6.19. The Law Commission recommended that the restriction against coercion and confinement should also apply to attorneys.

 

6.20. The Law Commission also proposed that no attorney should be able to consent to or refuse medical treatment while the patient has the capacity to make this decision. This would ensure that the dialogue between patient and doctor was not disturbed and complies with one of the Law Commission's other recommendations regarding health care, namely that a doctor should ensure that the patient is encouraged to participate in the decision-making process regarding his or her treatment as far as is possible.

 

6.21. The Law Commission also recommended that an attorney should not be able to consent to the donor's admission to hospital for assessment or treatment for mental disorder where such admission is against the will of the donor. This will go some way to reassure those with concerns that people with limited capacity may be confined against their will, for example where they are causing a nuisance in residential homes.

 

6.22. The Government accepts these recommendations.

 

6.23. The Law Commission recommended that an attorney should not be able to withhold basic care from the donor or refuse consent to its provision. A person with capacity would not be able to refuse such care by an advance statement either. As has been noted in paragraph 5.26, however, the Government has reservations about the possibility of force-feeding.

 

6.24. The Law Commission also recommended that an attorney should not be able to consent to treatment where the patient had made an advance refusal unless expressly authorised to do so. (ref)

 

6.25. The Government seeks further views on the proposal that attorneys should be able to refuse treatment on behalf of a patient where there is no explicit advance refusal. The best interests criteria outlined by the Law Commission include a requirement that regard should be had to the views of people whom it is appropriate and practicable to consult about the person's wishes and feelings and what would be in their best interests. This criterion would therefore ensure that the views of donees of a power of attorney are taken into account in almost every case. It might be that this is a more appropriate provision than to provide donees of a CPA with any further powers to refuse treatment. That said, the Government acknowledges that to prevent an attorney from refusing treatment on behalf of the donor would be a significant restriction on the powers proposed by the Law Commission.

 

6.26. The Law Commission recommended that, in cases where court approval or independent supervision of a decision would normally be required, the attorney should only be able to consent to treatment where expressly authorised to do so. This would also apply to discontinuation of artificial nutrition or hydration, procedures for the benefit of others and non-therapeutic research. In doing this the Law Commission were trying to strike a balance between the autonomy of the patient and ensuring that a controversial decision should not be made without proper consideration.

 

Q54. What safeguards would be needed to ensure that such a recommendation would work in practice?

 

6.27. The Law Commission also suggested that an attorney would need to be expressly authorised to consider any refusal of treatment which might sustain life. Again this is a question which may be more appropriately covered by the best interests criteria.

 

The donor and the donee

The donor

 

6.28. The Law Commission recommended that a donor of a CPA must be at least 18. This would ensure there was no overlap with the provisions of the Children Act 1989 or wardship. This, however, leaves the position of a competent near adult uncertain when, in the absence of an effective parental relationship, they may have good reason to want to nominate an adult to take health treatment decisions for them if they become incapacitated.

 

6.29. The Government acknowledges that the Law Commission's proposal would leave a young person for whom no one has parental responsibility in an anomalous situation. The Government would therefore welcome views on how this might be dealt with.

 

Q55. Should a person between the ages of 16 and 18 be permitted to be a donor?

 

 

The donee

 

6.30. The Law Commission recommended that a donee might be the holder for the time being of a specified office. This was in response to representations made by the Public Trustee and the Association of Directors of Social Services among others, that a public official might occasionally be required to act as an attorney of last resort. This provision would ensure that, where a person was threatened with the loss of capacity, they would have someone to act on their behalf.

 

Q56. Would such a recommendation be workable in practice?

 

Creating, amending, terminating and registering a CPA

Right to amend or terminate a CPA

 

6.31. The Law Commission recommended that a person should be able to amend or terminate their donation of a CPA at any time where they retained the capacity to do this. The Law Commission also recommended that a donor of a CPA should be able to appoint a person to replace the donee in the event of the donee: disclaiming the power of attorney, dying, becoming bankrupt (in relation to financial matters only), becoming incapacitated, or becoming divorced from the donor.

 

6.32. The Government accepts this recommendation.

 

 

Form of the CPA

 

6.33. The Law Commission recommended that, to ensure a donor and donee of a CPA understand the implications of this authority, the prescribed form of a CPA should include explanatory material. The donor would be required to state that he or she intends the power of attorney to continue in spite of supervening Mental incapacity, and he or she would be required to state that they had read the explanatory information, or had it read to them. The Law Commission also recommend that the donee must state that he or she understands the duty to act in the donor's best interests.

 

6.34. The Government accepts this recommendation in principle, but will give further consideration to the form of such material, particularly for people who have reading difficulties or whose first language is not English. The views of respondents are welcomed.

 

Q57. What provision should be made for people who have reading difficulties or whose first language is not English?

 

6.35. The Law Commission also recommended that the donee be required to state that they understand the principle of best interests which must inform their treatment of the donor when they lose capacity.

 

6.36. The Government accepts this recommendation in principle.

 

 

General power

 

6.37. The Law Commission have concluded that a CPA can confer a general power, as long as the explanatory material makes clear the nature of the power granted.

 

6.38. The great majority of EPAs currently submitted to the Court of Protection are general, in that they grant power in relation to all a donee's property and affairs. The Government would welcome views as to whether this general approach is considered appropriate for CPAs, or whether specific powers should be listed, which could provide an additional safeguard against abuse.

 

Q58. Should a CPA be able to grant general authority, or should specific matters be listed on the form?

 

Execution and registration requirements

Execution

 

6.39. The Law Commission's provisional proposal that a donor's capacity to execute should be subject to a certificate from a doctor and solicitor was regarded as overly intrusive by respondents to their consultation.

 

6.40. Although the Law Commission revised its view, and rejected a requirement for certification, the Government considers that a system for certification by a solicitor and a medical practitioner might help prevent unnecessary abuse of these powers.

 

Q59. Should there be a system for certification of CPAs by a solicitor and/or a medical practitioner?

 

 

Registration

 

6.41. Respondents to the Law Commission's Consultation Paper were equally divided over whether a system of registration was necessary.

 

6.42. Registration has the advantage of bringing a document into the public domain and establishing its formal validity. It may also discourage some people from applying to register a CPA who might have abused the authority conferred by it. On the other hand, a purely administrative procedure may not provide adequate safeguards.

 

6.43. The Government would welcome suggestions for a system of registration that performs a clearly useful function; is simple and easily understood; and incorporates sufficient safeguards for donor and donee either through this or some other certification system. Experience with the registration of EPAs has shown that there is little advantage in having an administrative registration system which presents at best a hurdle and at worst a pitfall to honest attorneys, but can easily be evaded by those with fraudulent intentions. It may be that the only effective choice is between making powers of attorney inexpensive and easy to operate for the honest majority with the attendant risk, or deciding that the risk of abuse of a vulnerable minority cannot be tolerated and that formal controls should therefore be imposed on all for the protection of the minority. Views are sought upon whether it is necessary to choose between these two options and whether it is realistic to seek a workable compromise between them.

 

Q60. What safeguards should accompany a registration system for CPAs?

 

6.44. The Government accepts the Law Commission's recommendation that no document should create a CPA unless it is in the prescribed form.

 

6.45. The Law Commission recommended that a registration authority should be appointed by the Lord Chancellor to register CPAs. The Law Commission envisaged that this function was likely to be undertaken by the Public Trust Office (PTO). The Government accepts that there is a strong case for the PTO taking on this work, but seeks views on whether this is generally considered acceptable.

 

Q61. Would the Public Trust Office be the most appropriate registering authority?

 

Q62. What structure and function should the registering authority take?

 

 

Notification

 

6.46. The donee is, under the Law Commission's proposed scheme, required to notify the donor that he or she intends to register the CPA. The CPA will not be registered if the donor objects (unless the court so orders). The Law Commission recommended that, once a CPA had been registered, formal notice should be given to the donor by the registration authority.

 

6.47. In relation to enduring powers of attorney this can be dispensed with - for example, where the donor is in a coma and the notification would thus serve little purpose. The Law Commission did not think this needed to be replicated because, under their new scheme, the registration of a CPA could be effected at any time and not only if the donor loses capacity.

 

6.48. The Law Commission also recommended that there should be notification to others once the CPA had been registered rather than when there is an intention to register. The people to be notified would be left to the donor but there would be a limit of two people.

 

6.49. The Government has a number of practical concerns about this proposal, on which views are sought:

 

Q63. What safeguards should be implemented to minimise the risk of fraudulent registration?

 

Q64. What period of notice should be allowed between notification of registration and the ability to use the power of attorney?

 

Q65. What proof of service of notification should be required before an attorney is authorised to act?

 

Modification and termination of a CPA

6.50. There are two areas to balance here:

 

the protection of the donor; and

 

the protection of the donee where they are acting in good faith, believing that the CPA still applies.

 

 

Powers to modify or extend the scope of a CPA

 

6.51. The Law Commission recommended that the terms of a CPA should be capable of extension by the court where this is in the best interests of the donor, such as when new circumstances come to light in which decisions outside the scope of the CPA are needed and the court feels that the donee is best placed to deal with these.

 

6.52. Such decisions will only work where the donee is willing to take on this additional responsibility: they must be able to refuse. The donor will, however, be able to exclude this specifically in his or her CPA. This balances the right of the individual to make certain choices and the need to ensure that decisions can be taken in his or her best interests.

 

6.53. The Government accepts this recommendation in principle, and will give further consideration to the form of the explanatory material which would make this possibility clear to potential donors and donees.

 

 

Disclaimers

 

6.54. The Law Commission recommend that no disclaimer of a CPA should be valid unless the required notice is given to the donor and the registration authority.

 

6.55. The Government accepts this recommendation in principle, and will ensure that it is made clear to potential donees that this applies when they take on this responsibility.

 

 

Revoking a CPA

 

6.56. The Law Commission recommended that a donor of a CPA should have the power to revoke it at any time that they had the capacity to do so. In tandem with this they recommended that the provisions of section 5 of the 1971 Powers of Attorney Act should continue to apply so that a donee acting on the authority of the CPA is protected from liability as long as they do not know of the revocation.

 

6.57. The Government accepts this recommendation.

 

 

Divorce and bankruptcy

 

6.58. The Law Commission suggested a number of specific provisions to deal with the bankruptcy of a donee or the divorce of donor and donee.

 

6.59. Although it is perfectly understandable that a person who is bankrupt should not be able to deal with the financial or property affairs of a donor, the Law Commission saw no reason why this should apply to personal welfare or health care decisions.

 

6.60. Unless the donor has specifically instructed to the contrary, the Law Commission also thought that the dissolution or annulment of a donor and donee's marriage should denote the end of a CPA, just as it noted the end of their relationship. This does not preclude the donor from deciding that his or her former partner is the person they would wish to make these decisions. A reminder notice will need to be placed on the decree absolute (or the divorce order once Part II of the Family Law Act 1996 comes into force).

 

6.61. The Government accepts these recommendations.

 

 

Limitations on the powers of the registration authority

 

6.62. The Law Commission limited the registration authority's powers to cancelling the registration of a CPA on the basis of:

 

a revocation by the donor;

 

a disclaimer by the donee;

 

the death of the donee;

 

the expiry of the time limit;

 

the donee becoming incapacitated;

 

the divorce or annulment of the marriage of donor and donee; or

 

evidence of the bankruptcy or winding up of the donee.

 

6.63. The registration authority should also be required to attach an appropriate notice on the CPA to note any changes.

 

6.64. The functions envisaged are thus purely administrative. Views are sought on whether this is considered appropriate, and in particular, on whether there are any circumstances in which an administrative registration authority should refuse to register a CPA. (For example, must it accept a CPA which appears on its face to be a forgery or it is so materially defective that there is doubt about whether it is properly a CPA at all?) Any power to reject requires the exercise of a discretion.

 

Q66. Should the functions of the registering authority be administrative only?

 

Powers of court

Powers of the court

 

6.65. The Law Commission made a distinction between the administrative powers of the registration authority and the judicial functions of the court. The powers of the court will include:

 

determining the meaning or effect of a CPA;

 

determining whether a donor has the capacity to create or revoke a CPA;

 

determining whether revocation has been effective;

 

giving directions to the donee where the donor loses capacity, including directions as to the production of information, reports, accounts and records;

 

determining a donee's remuneration and expenses;

 

relieving an attorney from some or all of the liability arising from a breach of duty; and

 

the power to direct that a power of attorney should not be registered, or should be revoked if it has been registered where fraud or undue influence was used to create it.

 

6.66. The above powers reflect the existing jurisdiction in relation to EPAs. In addition, the Law Commission recommended that the Court of Protection should also gain new powers, for example to cure defects in a CPA, where the intention was clearly to create a CPA.

 

6.67. The Government accepts this recommendation in principle, as long as it is clear to what extent the court can consider a CPA. There should not, for example, be any question of a CPA being granted where the donor lacked capacity or where the donor and donee had not been given the opportunity to consider the relevant explanatory information and so did not fully understand the implications of their actions.

 

Q67. Under what circumstances should the court not be able to cure defects in a CPA?

 

6.68. The Law Commission recommended that the court should have the power to appoint an attorney, where the donee was no longer able or willing to act. This would be judicial intervention of last resort as a donor already has the opportunity, under the Law Commission proposals, to appoint a substitute donee in the event of this happening. This would therefore only be available in cases where the donor had lost the capacity to act. The Law Commission were not prepared to extend this to those cases where no CPA had been made, on the grounds that the person had not contemplated giving decision-making authority to another person.

 

6.69. The Law Commission also recommended that the court should be able to direct either that a purported CPA should not be registered or revoke a CPA where the donee or intended donee has behaved, is behaving or proposes to behave in a way that either contravenes or would contravene the authority granted in the CPA, or is not or would not be in the donor's best interests.

 

6.70. The Government accepts these recommendations.

 

 

Transitionals

 

6.71. The Law Commission recommended that no EPA should be able to be made after any proposals on CPAs are brought into force. Transitional provisions will be needed for some EPAs made prior to the repeal of the 1985 Act.

 

6.72. The Government accepts this recommendation.

 

 

Option to convert

 

6.73. The Law Commission would prefer that, if a person wishes to make a CPA, they should destroy any existing EPA. They have, however, suggested that a person should be able to convert an EPA into a CPA. These conversions would have the same conditions as the making of an entirely new CPA, i.e. the donor would need to be capable of the decision, both donor and donee would need to have read and understood the explanatory materials provided, and the usual registration procedures would apply. The form for such a conversion would be prescribed. The Government believes that this is likely to cause an increase in workload for the PTO if they become the registration authority. In addition, an option to convert would almost certainly prove more bureaucratic and confusing than simply creating a new CPA from scratch. The Government would welcome views.

 

Q68. Is there a need for an option to convert an EPA into a CPA?

 

Miscellaneous

6.74. The Law Commission considered that innocent attorneys and third parties should have some protection where they rely on an invalidly registered CPA. This is similar to the protection currently afforded to third parties who rely on an invalid EPA.

 

6.75. The Government accepts this recommendation.

1 Law Com 231, para. 7.1.Continuing Powers of Attorney

 

2 The Law Commission listed a number of areas in which they thought an attorney should not be able to act on behalf of a person without capacity: (1) consent to marriage; (2) consent to have sexual relations; (3) consent to a divorce petition on the basis of two years separation; (4) agreement to adoption or consent to freeing a child for adoption; (5) voting at an election for any public office or (6) discharging parental responsibilities except in relation to a child's property.

 

3 HL Paper 21-I, para. 268.