Published on: 29th November 2021

Confirmation of the Importance of Lasting Powers of Attorney for Access to Medical Documents

On 10 November 2021, the Office of the Public Guardian (OPG) provided guidance to NHS staff around the disclosure of medical information to attorneys and deputies. This is so that they can make informed decisions on behalf of a donor. 

The OPG has noted that attorneys on a registered Lasting Power of Attorney (LPA), whether Health and Welfare or Property and Financial Affairs, should have access to relevant medical documents and information about the donor. This is to ensure that attorneys have the information needed to fulfil their role and act in the donor’s best interest.

The Information Commissioner’s Office advises that “it is reasonable to assume that an attorney with authority to manage the individual’s property and affairs, or a person appointed by the Court of Protection to make decisions about such matters, will have the appropriate authority.” This statement confirms that those with an LPA should be deemed to have the authority to request medical information regarding a donor from the NHS or other medical providers. It is important to note, however, that only those with an LPA for Health and Welfare would be allowed to make medical decisions on behalf of a donor who lost capacity. 

In accordance with the Mental Capacity Act 2005, there are five principles that health and social care facilities (including the NHS) must follow. These are:

1. Every adult has the right to make their own decision and must be assumed to have capacity unless otherwise proven.
2. Individuals must be supported as best as possible to make a decision before it is concluded that they do not have sufficient capacity,
3. Adults are able to make unwise or eccentric decisions.
4. Anything done for an individual without mental capacity must be done in their best interest.
5. Anything done for an individual without mental capacity should be the least restrictive of their basic rights.

Part of these principles is to receive information in a timely manner so that an attorney can act in the donor’s best interest and be least restrictive. The onus is on the NHS to confirm whether the evidence of authority is valid. They are able to do this by contacting the OPG or searching the OPG’s register in urgent cases. 

Whilst this guidance applies to those who have become a deputy under a court order until the deputyship has been granted, this information is not available. The process of becoming a deputy can be expensive and time-consuming. It is for this reason that we highly recommend creating LPA documents. 

If you would like to create LPAs or would like more information, please contact our client services team to book a no-obligation appointment with one of our experienced Consultants by calling 01732 868190 or using our online form by clicking here.

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Our Covid-19 policy is now that if you wish to give instructions or require general information about our Wills, Lasting Powers of Attorney, or Trusts then we will carry out a telephone or Zoom appointment. However, if you wish to give instructions to one of our Consultants and you feel that you can only do this at a Face to Face meeting we are offering, at our Consultant’s discretion, a limited number of Face to Face appointments in most of the areas we normally cover (subject to Government advice). To see the areas we normally cover please click here. To arrange an appointment please telephone 01732 868190 or click here.

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