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| Journal of the New Zealand Medical Association,
24-September-2004, Vol 117 No 1202
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Doctors, elder abuse, and enduring powers of
attorney
Frances Matthews
In New Zealand, the Protection of Personal and Property
Rights Act (1988), hereafter termed the PPPR Act, is used to protect vulnerable
adults who are unable to make their own decisions about welfare and property
matters. Such people lack the capacity to understand the nature, and to foresee
the consequences, of decisions in respect of matters relating to personal care
and welfare [s.5(a)]; and lack the capacity to communicate decisions in respect
of those matters [s.5(b)]. They may wholly or partly lack the competence to
manage...their own affairs in relation to...property [s.25(1)(b)]. The Act is
administered by the Family Court.
There are two means of protecting people who may be
suffering from reversible or irreversible conditions such as brain injury,
dementia or intellectual handicap:
This article discusses shortcomings
in the legislation concerning the appointment and conduct of attorneys contained
in Part IX of the PPPR Act, and suggests some steps that doctors can take when
dealing with those who have been granted an enduring power of attorney by their
patients. There is widespread ignorance about the scope and limitations of
enduring powers of attorney, and about the appropriate course of action for
those who believe that attorneys are misusing their powers.
Who can donate an enduring power of attorney (EPA)?Any competent adult can donate an
enduring power of attorney (EPA). It may be done at the same time as making a
will, and many lawyers encourage their clients to do so as part of sensible
estate planning,1 or it may be done in later
life when worries about personal health and the possibility of dementia may be
uppermost in a donor's mind.
An EPA is seen as a cheap and accessible way of planning for
the future by nominating a person such as family member or close friend to make
welfare decisions in the event that the donor becomes incapacitated; for
example, by illness or accident (s.98). The same person (s.99), or another
person/persons (s.97), or a trustee corporation may also be given power of
attorney in relation to property and financial matters. EPAs in relation to
personal welfare only come into force when the donor becomes incapacitated. The
power given may be of a very general nature, or may be very specific, depending
on the wishes of the donor.
Powers in relation to property can be general or specific
according to the wishes of the donor and may come into force at any time
regardless of the donor’s capacity, or may only come into force in the
event of the donor’s incapacity. The donor must use an appropriate form
specifying their wishes, and the document must be signed and dated by both donor
and attorney, and witnessed.
Who can be an attorney?The Act specifies categories of
people who cannot act as attorneys because they would already have been deemed
incompetent in some or all areas. An attorney must be not less than 20 years of
age, must not be bankrupt, and must not be subject to a personal order or a
property order. They must not be special or committed patients under the Mental
Health Act 1969. In other words, the attorney must be an adult and must be
competent to act for the donor. The enduring power of attorney ceases to have
effect if the attorney falls into any of the above categories; dies; or has his
or her powers revoked by the courts (s.105), or by the donor; or otherwise
becomes incapable of acting (s.106).
There is no mechanism to ensure that an EPA is revoked if
the attorney becomes incapable of acting (for whatever reason), including being
a special or committed patient. The Act does not further define being
‘otherwise incapable of acting’. Suffering an incapacitating mental
or physical illness due to dementia, stroke, or serious injury may all
qualify.
GPs may find that one of their patients has donated an
enduring power of attorney to a spouse or child who then suffers from a physical
or mental illness which renders them unable to make decisions on their own, or
the donor's behalf. Alternatively GPs, and others, may be unaware of the
existence of an EPA.
Rights and responsibilities of attorneys, property managers, and welfare guardiansThere are more checks and balances
operating on those appointed by the courts than on attorneys, and welfare
guardians' and property managers' duties are more closely defined. (see Table 1
and Table 2).
Table 1 Responsibilities of welfare guardians, property
managers and attorneys
Property managers appointed by the courts have a duty to
consult the person whose property they manage, and others who are interested in
the welfare of the person (s.43), and must prepare and file statements with the
court at regular intervals (s.45). Statements filed by individual managers may
be reviewed by the Public Trustee or nominated accountants (s.46). Any person,
with the court’s permission, can inspect the statements that have been
filed (s.47). In contrast, attorneys do not have to consult donors or others,
and their actions are not subject to automatic scrutiny.
Table 2. Limitations of powers of welfare guardians and
attorneys
ECT=electroconvulsive
therapy.
Welfare guardians must consult the person for whom they act,
and other interested persons (such as family members), as far as is practicable.
They must encourage the person to make their own decisions as far as possible,
and must also consult with property managers. They cannot make decisions
concerning entering into marriage, dissolution of marriage, or adoption of
children of the person. They cannot refuse consent to standard lifesaving
medical treatment, or treatment that prevents serious damage to the person's
health. They cannot consent to electroconvulsive therapy (ECT), psychosurgery,
or (in most circumstances) participation in medical experimentation (s.18).
In addition, welfare guardians cannot refuse treatment
intended to be lifesaving. This may (in some circumstances) apply to
cardiopulmonary resuscitation (CPR); however, many clinicians would view CPR as
a futile treatment in elderly patients with serious and multiple medical
problems, including cancers, and would advise against attempts at resuscitation.
Welfare guardians must promote and protect the welfare and serve the best
interests of the person. Their appointment is not indefinite (s.12), as an
attorney’s is.
Attorneys have the same limitations on their powers as a
welfare guardian, but they are not specifically instructed to promote the
welfare of the donor, or to consult with the donor, or any other person such as
doctors, social workers, or other family members. If they do not act in the
donor’s best interests, their powers may be revoked by the Family Court
(s.105), but someone has to draw the matter to the attention of the court. The
court may, if asked by the donor, review an attorney’s decisions (s.103).
Any other person (not further defined in the Act) can apply
to the court for review of an attorney's decision. Such a person must satisfy
the court that there is evidence that the attorney has made the decision while
the donor is incapacitated; and if so, the court has discretion to grant
permission for a review, depending on a number of factors including the
relationship between the applicant, the attorney and the donor, and the merits
of the claim.2
In reality, attorneys have wide powers to act (without the
obligation to consult others, or account for their actions—unless an order
is issued by the Family Court requiring them to do so). This means that if an
attorney misuses his or her powers when the donor is incapacitated, others must
approach the Court on the donor’s behalf. They may not do so because of
ignorance of donors' and attorneys' rights and responsibilities, reluctance to
interfere in what may be seen as a family matter, or fear of the cost.
Misuse of EPAsIn the UK, when donors become
incompetent to manage their own affairs, EPAs must be registered with the Public
Guardianship Office (PGO).3 In addition,
certain categories of relations must be informed—including the spouse,
parents, children (including adopted children), full and half brothers and
sisters of the donor (and their children), and grandchildren of the donor. The
PGO does not monitor the way an attorney acts, but it considers complaints and
can decide whether the attorney should be removed, or if other arrangements
should be made for the donor.
At present, EPAs in the UK deal with property only. It is
estimated that about 10,000 new EPAs are registered each year and that
10–15% of EPAs are operated improperly or fraudulently despite the
registration requirements.4
There is no way of knowing how many EPAs are granted in any
year in New Zealand, or how many are misused. In 2001, the Law
Commission1 received evidence of misuse of
powers of attorney, including a small study of 130 reported cases of elder abuse
in the Auckland area over a 2-year period, of which 40 were attributable to
misuse of an EPA.
Misuse of EPAs fell into two broad categories:
It is
impossible to know how widespread these practices are, but family doctors,
geriatricians, and psychiatrists may know of instances where attorneys have not
acted in the donor’s best interests—for example by refusing
assessment or medical treatment for the donor; or refusing services such as
Meals on Wheels, Home Help, and various personal carers for the donor; or by
withholding money for care, or spending it
inappropriately.1
The Law Commission
identified several problems regarding EPAs:
The
Commission advised that (in some circumstances) there should be proof that the
donor had received independent legal advice and that the way in which attorneys
dealt with property should be monitored. Older donors and those in various
institutions should be advised of their rights by a solicitor, and a certificate
issued to this effect, and there should be certification by a medical
practitioner when the donor becomes incompetent. The Commission also advised the
appointment of a Commissioner for the Aged to act on behalf of the
elderly.1 None of these recommendations have
yet become law. The Commission rejected the idea of registering EPAs on the
grounds of both the cost of maintaining such a register, and for reasons of
privacy.1
Doctors and EPAsBoth hospital doctors and family
doctors may have to deal with attorneys acting on behalf of incompetent donors.
Problems may arise due to:
Issues of validity:
Doctors, especially
family doctors, with relationships with both donor and attorney, may be aware of
these circumstances, or other family members may confide their fears about the
circumstances of an elderly relative during the course of a consultation. The
donor may confide in the family doctor.
Doctors should be aware of the limits of decision making
powers by attorneys in relation to patient welfare, especially if the attorney
is proposing to act in a way that is not in the patient's best
interests.
It is not sufficient to disapprove of the donor’s
choice of attorney: the courts uphold the autonomy of competent donors and will
not revoke an EPA simply because others disapprove of the attorney, provided
he/she is capable of performing the duties
required.7
It is reasonable for doctors dealing with incompetent
patients to ask to see a copy of the power of attorney, and check that the
attorney has the power to act on behalf of the patient, that the EPA was signed
at a time when the patient was competent to sign it, and that the patient
intended the attorney to act in the areas of personal care and welfare. Those
dealing with the elderly are aware of vast grey areas where no power of attorney
exists but they consult with the patient’s spouse or children on personal
care issues, reasoning that such people will have the patient’s best
interests at heart.
The vast majority of attorneys and family members do have
the patient’s best interests at heart, but a few do not.
Failure to act in the donor’s best interests:
Table 3. ‘Red Flags’: Is the attorney
acting in the donor's best interests?
Family doctors may be aware that something is wrong if
attorneys do not ensure that donors keep scheduled appointments, or an elderly
donor has many emergency room attendances for injuries. A series of attendances
for falls or burns may give rise to suspicion that all is not well, either
because the patient is not receiving sufficient care and supervision, or that
the carer/ attorney is deliberately assaulting the patient. When challenged,
attorneys may refuse help and try to intimidate doctors and nurses with
statements like ‘I've got power of attorney and I know what Dad
wants/needs.’
Neighbours, friends, and relatives may become concerned
about the care given to elderly people by those with EPAs—and may turn to
medical staff, social workers, and charities such as Age Concern, for
help.
Medical staff may be reluctant to intervene because of
worries about breaching confidentiality if they disclose their suspicions.
Medical staff, however, have a duty of care to their patients, and in some
circumstances the duty of care overrides considerations of privacy and
confidentiality, particularly in situations where the patient is vulnerable and
cannot act for him- or herself.
If a doctor thinks that a patient is in serious and imminent
danger,8 they can disclose their concerns to
appropriate people. This may take the form of contact with hospital
geriatricians, social workers, or (in extreme circumstances) the police. A GP,
after receiving allegations from neighbours and relatives of an elderly person,
may visit the patient’s home, and find that their circumstances are less
than ideal. It may be possible to ask for admission to hospital, or assessment
in the community. On a few occasions, it may be clear that the attorney is
misusing his or her powers—perhaps making attempts to block hospital
admission or access to services. Doctors may then have to turn to the courts for
help.
If it is not possible to obtain help from the local
hospital, phone or write to the Family Court detailing your concerns and your
relationship with the patient. Charities such as Age Concern, or a local
Community Law Centre, may be able to help with legal advice. Appropriate forms
for the appointment of a welfare guardian or property manager are available from
the Family Court, or from their website.9 The
Medical Protection Society (MPS) will be able to advise on issues of disclosure,
and it is a good idea to keep them informed of steps you plan to take.
Attorney's powers can be overridden by personal orders from
the Family Court (s.100). The Court, a competent donor, or a welfare guardian,
can revoke a power of attorney. If the person is incompetent, a welfare guardian
(s.10) should, if possible, be appointed in the place of the attorney. Usually
the Family Court will appoint counsel to enquire into the circumstances
surrounding an application, and under normal circumstances this can take time.
In an emergency, such as the need for hospital admission, interim orders can be
made, with arrangements for review after a certain period of time.
Appointment of a welfare guardian after a patient has become
incompetent can be a time-consuming process. The appointment of an attorney
while the donor is still competent to do so is a quick and cheap option for
people who want the reassurance that relatives or friends will make decisions
for them when the time comes. The EPA, properly used, should act as a shelter
for the elderly from the vicissitudes of life, not as a weapon in the hands of
the unscrupulous attorney. Doctors, and others caring for incapacitated
patients, should be aware of the possibility of misuse, and be prepared to take
action on behalf of those who cannot act for themselves. Familiarity with some
of the issues involved should ensure they are not deflected from their roles as
advocates for their patients by the existence of an enduring power of
attorney.
Author information:
Frances G Matthews, GP member of the Elder Abuse and Neglect Panel, Age Concern
(Otago), Bioethics Department, University of Otago, Dunedin
Correspondence: Dr
Frances G Matthews, Bioethics Department, University of Otago, Union Street, PO
Box 56, Dunedin. Fax: (03) 479 2582; email: gwenllian28@xtra.co.nz
References:
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