The dilemma: You have been approached by the son of an elderly female patient who tells you he is worried that his mother’s memory may be deteriorating. He is concerned that she has recently started buying numerous products from catalogues and, uncharacteristically, forgot his wife’s birthday last week. He tells you he wants to obtain power of attorney for her financial affairs and suggests he brings her to see you for a capacity assessment.
It is important to listen to and document the son’s concerns within your patient’s medical records. It is possible that what he describes reflects deterioration in your patient’s memory or health. You should also suggest the son talks with his mother about his concerns and the fact that he has raised them with you.
Although the son’s focus appears to be about obtaining power of attorney, explain to him that it would be appropriate for you to review the patient clinically first, since he has concerns about her memory.
It may be that there is a short term or reversible cause for her forgetfulness. If she has evidence of persistent memory deterioration, you should assess the extent of this, arrange further investigations and offer referral to a specialist memory clinic.
It is also worthwhile being mindful that there could be existing tensions within the family that explain the patient’s recent behaviour.
When you see the patient, you may wish to explore her thoughts on power of attorney. If she wishes to proceed, suggest she seeks legal advice.
If you are subsequently asked to make an assessment of the patient for a lasting power of attorney application, it is important to understand what the document is and the doctor’s role in the process.
Lasting power of attorney
A lasting power of attorney (LPA) is a legal document and allows patients to appoint one or more people (known as ‘attorneys’) to help them make decisions or to make decisions on their behalf, in the event that they lose capacity.
A LPA can be made for decisions relating to property and financial affairs, but can also be made so that health and welfare decisions can be made by the appointed attorney once the patient no longer has capacity to make such decisions.
In order for a LPA to be valid, the patient needs to have mental capacity at the time of making the LPA. If it is clear to the solicitor assisting the patient that there is no issue with capacity, a doctor will not necessarily be involved. However, if there is doubt as to the patient’s capacity, doctors may be asked to certify the following:
- That the patient understands the purpose, the nature and the extent of the LPA
- That the patient is not acting under undue influence or pressure
- That there is nothing else that will prevent the creation of the LPA
Certificates and processes vary slightly depending on the UK jurisdiction (see below for more on this), however the general principles are similar.
On making this assessment, doctors should speak to patients separately from their proposed attorneys, who are often family members. They must ensure that the patient understands the decision they are making, is able to retain the information long enough to make the decision, can weigh up the pros and cons and can communicate back their decision.
Doctors should encourage patients to explain why they wish to make the LPA, why they have chosen the attorney and what powers they will be giving them. Doctors should ensure there is no evidence of coercion or pressure. It is important to make detailed notes of this assessment of capacity, so that the decision can be justified in case of future dispute.
If doctors feel that a particular capacity assessment is difficult or outside of their own expertise, they may wish to ask a patient’s treating psychiatrist (if they have one) to make the assessment or consider referral if clinically indicated.
- Dr Birch is a medicolegal adviser at Medical Protection
More information on UK certificates and processes
- England and Wales: Mental Capacity Act Code of Practice
- Scotland: Office of the Public Guardian (Scotland) information on power of attorney
- Northern Ireland: Northern Ireland Courts and Tribunal Services information on enduring power of attorney