Restrictions or Restraints Under Lasting Powers of Attorney
Published / Last Updated on 01/11/2019
What restrictions or restraints apply under Lasting Powers of Attorney?
- Donor = the person who set up the Power of Attorney
- Donee = the person appointed to act on behalf of the donor
- Instrument = the Power of Attorney Document
1) A lasting power of attorney does not authorise the donee [person acting on your behalf] (or, if more than one, any of them) to do an act that is intended to restrain people, unless three conditions are satisfied.
2) The first condition is that if the donor [person who set up the attorney] lacks, or the donee reasonably believes that the donor lacks, capacity in relation to the matter in question.
3) The second is that the donee reasonably believes that it is necessary to do the act in order to prevent harm to the donor.
4) The third is that the act is a proportionate response to—
- (a)the likelihood of the donor suffering harm, and
- (b)the seriousness of that harm.
5) For the purposes of this section, the donee restrains the donor if he—
- (a)uses, or threatens to use, force to secure the doing of an act which the donor resists, or
- (b)restricts the donor's liberty of movement, whether or not the donor resists, or if the donee authorises another person to do any of those things.
6) Refers section F ....
7) Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P's personal welfare, the authority—
- (a)does not extend to making such decisions in circumstances other than those where the donor lacks, or the donee reasonably believes that the donor lacks, capacity,
- (b)is subject to sections 24 to 26 (advance decisions to refuse treatment), and
- (c)extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for the donor.
8) But subsection (7)(c)—
- (a)does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument [i.e. the Power of Attorney Document] contains express provision to that effect, and
- (b)is subject to any conditions or restrictions in the instrument [Power of Attorney Document].
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