Recent reports concerning the care of explorer Sir Ranulph Fiennes raise some important and difficult questions about the limits of a Lasting Power of Attorney.
Family members and friends have reportedly expressed concerns about his care arrangements, his movements between care homes and restrictions on people seeing him. One relative has reportedly said that when she did see Sir Ranulph, he told her that he wanted to see his friends. These remain allegations and there may be information about his health, capacity and care arrangements which is not publicly available.
But the circumstances highlight a question which arises in many less high-profile families:
If somebody holds a health and welfare LPA, can they decide where the donor lives, prevent them leaving and decide which friends or relatives they are allowed to see?
The answer is not simply yes.
An LPA does not automatically transfer control
The starting point is often misunderstood.
A health and welfare attorney can only make a particular decision for the donor when the donor lacks the mental capacity to make that decision themselves.
That means the existence of an LPA does not itself answer questions such as:
Should this person live in a care home?
Can they return home?
Can they see their children?
Can an old friend visit?
Can they make a telephone call?
Can restrictions be placed on their movements?
The first question is:
Does the person have capacity to make that particular decision?
That is fundamentally different from asking whether they have dementia, Parkinson's disease, cognitive impairment or significant care needs.
What if Sir Ranulph says he wants to see his friends?
This is where the reported circumstances become legally interesting.
It has been reported that a relative who saw Sir Ranulph says he told her he wanted to see his friends. Other friends and family members have reportedly complained about difficulties contacting or visiting him.
We cannot know from those reports whether Sir Ranulph has capacity to make decisions about contact.
But suppose someone in his position clearly says:
“I want John to visit me.”
The fact that he has been assessed as lacking capacity in relation to some other matter does not necessarily mean that an attorney can override that wish.
Capacity is decision-specific.
A person might lack capacity to understand the complicated risks involved in deciding whether they can safely leave residential care permanently, but still be perfectly capable of deciding that they want to see an old friend.
If they have capacity to make the contact decision, it remains their decision.
The attorney does not acquire a general power to decide because the person has lost capacity in some other areas.
What if he lacks capacity to decide who he sees?
The position then changes – but it still does not give the attorney unrestricted discretion.
If the person lacks capacity to make the particular decision, an authorised attorney may make relevant welfare decisions on their behalf, subject to the scope of the LPA.
But those decisions must be made in the person's best interests.
That requires more than the attorney saying:
“I think it is better if he doesn't see them.”
The decision-maker should consider the person's past and present wishes and feelings, their values and beliefs and, where appropriate, the views of people involved in their life and care. The person themselves should be involved as far as possible.
So if someone lacking capacity repeatedly expresses pleasure at seeing a particular friend and asks to see them again, those wishes do not become legally irrelevant merely because the attorney is now the decision-maker.
They may be highly relevant to determining what is actually in that person's best interests.
Would an attorney have to justify preventing contact?
Potentially, yes – particularly if the restriction were challenged.
An attorney does not normally have to obtain court approval every time they make an ordinary welfare decision within their authority.
But they remain accountable for exercising their powers lawfully and in the donor's best interests.
Government guidance on the Mental Capacity Act is particularly interesting in this context. Guidance dealing with potential abuse or failure by an attorney specifically identifies stopping relatives or friends contacting the donor as one possible warning sign.
That does not mean restricting contact is automatically unlawful.
There can be entirely legitimate reasons for doing so. A visitor might be distressing the person, attempting to influence them financially, disrupting necessary treatment, behaving abusively or creating a genuine safeguarding risk. But there should be a rational best-interests reason connected with the donor, rather than simply a disagreement between the attorney and the visitor. And the more extensive the restriction becomes, the more important that justification is likely to become. Preventing one particular individual visiting because of a demonstrated safeguarding concern is one thing. Preventing numerous longstanding friends and relatives from contacting someone who is apparently expressing a desire to see them raises rather different questions.
Who decides if the attorney and family disagree?
This is where the Court of Protection becomes important.
The Mental Capacity Act expressly gives the Court powers concerning both where a person should live and what contact they should have with specified people. The Court can even prohibit a named individual from having contact where appropriate.
Government guidance specifically identifies preventing somebody visiting a person lacking capacity in a nursing home as the sort of serious welfare disagreement that can ultimately be taken to the Court of Protection.
The attorney's view therefore isn't necessarily the final word.
Where there is a serious dispute, the Court can examine the evidence rather than simply accepting that the person holding the LPA knows best.
That could include evidence about:
the person's capacity to decide about contact;
what they themselves are saying they want;
their relationship with the proposed visitor;
their previous wishes and behaviour;
the reasons being given for preventing contact;
medical and care evidence;
safeguarding concerns;
whether less restrictive arrangements are possible; and
whether the attorney is acting within the scope of the LPA and in the person's best interests.
Being in a care home does not mean somebody has lost the right to decide
This is another important misconception.
A person does not automatically lack capacity because they live in residential care. Nor does an assessment that somebody cannot safely decide where to live necessarily establish that they cannot decide who they want to see.
Consider an elderly person who cannot properly understand their medication, mobility limitations and the risks of returning home without 24-hour support. They may therefore lack capacity to decide where they should live. The same person might nevertheless understand perfectly well:
“Sarah is my sister. I have known her all my life. I want her to come and see me.”
Those are different decisions and potentially require different capacity assessments.
What about being held in a care home against someone's wishes?
This raises another legal issue altogether.
If somebody has capacity to decide where they live, an attorney cannot simply use an LPA to detain them in a care home against their will.
If the person lacks capacity and the restrictions on their freedom are sufficiently significant to amount to a deprivation of liberty, additional legal safeguards are required.
Recent reporting concerning Sir Ranulph has included allegations surrounding whether the appropriate deprivation-of-liberty authorisation was in place during one care placement. Those allegations should not be treated as establishing the wider legal position concerning his current or previous care arrangements.
The broader principle is nevertheless important:
Having authority to make a decision about someone's welfare is not the same as having unrestricted authority to deprive them of their liberty.
What if the person says they want to leave?
Again, the words themselves do not completely resolve the issue.
Someone saying “I want to go home” does not necessarily establish that they have capacity to decide where they should live.
They need to be able to understand and weigh the relevant information concerning that decision.
But neither should those words simply be ignored because an attorney or care provider thinks residential care is safer.
The correct questions are:
Does this person have capacity to decide where they live?
And, if not:
What arrangement is actually in their best interests and what legal authority exists for any restrictions being imposed?
The Fiennes situation illustrates why capacity cannot be treated as an on/off switchm We do not know enough about Sir Ranulph's medical condition, capacity assessments or care requirements to reach conclusions about whether particular decisions concerning him have been lawful. That is an important qualification.But the public debate illustrates something much wider about health and welfare LPAs.
A person does not simply move from:
“I make my own decisions”
to:
“My attorney now controls my life.”
Someone may lack capacity for some decisions and retain it for others. Even where they lack capacity, their wishes and feelings remain important. And an attorney making decisions on their behalf must be able to demonstrate that those decisions are being made for the donor's benefit, not simply because the attorney has the legal document which appoints them.That becomes particularly important when decisions involve fundamental aspects of someone's life – where they live, whether they are free to leave and whether they can maintain relationships with the people who matter to them.The existence of an LPA is therefore not the end of the legal analysis.
In difficult cases, it is often where the questions begin.
