Enduring power of attorney covering personal care and welfare

When does an enduring power of attorney for personal care and welfare come into effect?

(Protection of Personal and Property Rights Act 1988, s.98)

An enduring power of attorney for personal care and welfare comes into effect only after the donor becomes legally incapable (for information see “Incapacity” in this chapter).

What powers does a personal care and welfare attorney have?

(Protection of Personal and Property Rights Act 1988, s.98)

The power of attorney can be general, or only relate to certain matters. If the donor wants it to relate only to certain areas, these must be specified in the power of attorney.

(Protection of Personal and Property Rights Act 1988, ss.98, 18)

An attorney for personal care and welfare cannot:

make decisions for the donor about entering into or dissolution of a marriage or civil union
make decisions about the adoption of any of the donor’s children
refuse consent to standard or life-saving medical treatment for the donor
consent to the donor receiving electro-convulsive treatment
consent to brain surgery or brain treatment for the purposes of changing the donor’s behaviour
give consent to the donor taking part in any medical experimentation other than one to be conducted for the purpose of saving the donor’s life or preventing serious damage to their health

Can the court review a personal care and welfare attorney’s decisions and performance?

(Protection of Personal and Property Rights Act 1988, ss.102, 103)

Yes. The court has the power to monitor an attorney’s performance, and, if necessary, to vary the terms of the enduring power of attorney. The court will only do this if an application is made by the donor or by some other person who has the leave of the court to apply.

Can a personal care and welfare attorney ask for directions from the court?

(Protection of Personal and Property Rights Act 1988, ss.101, 102)

A personal care and welfare attorney can apply to the court for directions about how to exercise their powers. The attorney might do this if there is difficulty carrying out some of the donor’s instructions.