Health & Welfare LPAs – how can attorney abuse be prevented?

The recent news story concerning Sir Ranulph Fiennes being unlawfully deprived of his liberty after his wife allegedly placed him in a care home with significant restrictions, raises important questions about how to protect the welfare of people who lack mental capacity and who cannot speak up for themselves.   

Sir Ranulph has not been seen in public for two years. It is reported that his wife, who is appointed as his health & welfare attorney, has moved him to a succession of different care homes with strict instructions on how he is cared for and with whom he can have contact, prompting concerns to be raised with the Office of the Public Guardian (OPG) and statutory authorities by both the care provider and members of Sir Ranulph’s family. 

As well as concerns regarding Sir Ranulph Fiennes being unlawfully deprived of his liberty, it is reported that significant restrictions were imposed on his contact with friends and family, unusual medication arrangements were set up and incomplete documentation was provided relating to resuscitation.  Whether or not all these concerns are ultimately justified, the allegations raise issues about the extent to which there is independent oversight of an attorney’s decision-making authority when a person loses capacity, unless concerns are actively reported. Health & Welfare LPAs were designed to empower individuals to make decisions in a person’s best interests. They were never intended to operate as unchecked instruments of control. This can become the case in practice where an attorney does not feel it necessary or appropriate to disclose information to friends or family and statutory services may not be involved if care is being funded privately. 

While the facts remain disputed and any conclusions about the conduct of particular individuals must await proper investigation, this case highlights  important questions about the operation of Health and Welfare Lasting Powers of Attorney (LPAs) and the safeguards in place to prevent attorneys from abusing their position. 

The law deliberately grants attorneys significant discretion. Decisions concerning care, residence, medical treatment and day-to-day welfare frequently need to be made quickly and pragmatically. Excessive regulation could undermine the very purpose of LPAs by creating unnecessary bureaucracy for families acting appropriately. However, the very features that make Health and Welfare LPAs effective can also create opportunities for misuse. Attorneys may control where a person lives, who can visit them, what information is shared about their circumstances and, in some cases, whether life-sustaining treatment should be given. In situations where the donor has advanced dementia, Parkinson’s disease, or another condition affecting capacity, they may be unable to complain or seek help independently. The challenge for policymakers is therefore not to reduce attorney powers, but to ensure those powers are exercised transparently and with full accountability.  

One recurring concern in cases involving vulnerable adults is social isolation. While attorneys may sometimes need to restrict contact where it is genuinely harmful, prolonged exclusion of multiple relatives and friends should trigger independent scrutiny. Isolation is a recognised risk factor in adult safeguarding because it removes informal oversight from those who know the individual best. Should there be a requirement on care providers to notify safeguarding authorities where an attorney seeks to impose extensive restrictions on family contact without a documented best interests assessment?  We are dealing with cases where such issues are arising, including making safeguarding notifications. 

Unlike property and financial affairs attorneys, whose actions often leave an auditable financial trail, welfare attorneys may make highly significant decisions with relatively little external review. In this case, concerns were apparently escalated by a vigilant care home owner who contacted regulators, police and the Office of the Public Guardian (OPG). Without that intervention, the concerns may never have come to light. The OPG is the body responsible for oversight of all LPAs (as well as Enduring Powers of Attorney) and plays a crucial role in registering and investigating LPAs however its’ powers of oversight are often focused on financial abuse.  

Welfare matters can be more difficult to investigate because concerns often involve subjective judgements about best interests rather than clear financial transactions. Perhaps there should be a system of periodic welfare reviews for high-risk cases, particularly where there is no active involvement from family members other than the attorney. Or should there be an expansion of the OPG’s monitoring powers in health & welfare cases and a clearer pathway created for third parties to request an independent review? A further option is mandatory annual reporting to the OPG where any decisions have been taken that restrict or interfere with medical treatment, visiting or residence. There is no doubt that the OPG’s resources are limited and there are an increasing number of safeguarding referrals being made, with a 14-week target in which to complete the investigation, but this is often missed, especially in complex cases. Adding to the responsibilities of an already stretched official body will not necessarily improve its service without effective staffing to go alongside. 

Of course, the overwhelming majority of attorneys act conscientiously and in accordance with the Mental Capacity Act 2005. Health and Welfare LPAs remain an essential planning tool which enable individuals to choose who will make decisions on their behalf if they lose capacity. Nevertheless, the allegations arising from the Sir Ranulph Fiennes case suggest that important safeguards can fail where an attorney is operating with limited scrutiny. It is interesting that the former senior judge of the Court of Protection, Denzil Lush, commented in 2017 that he would never sign a lasting power of attorney because of the devastating effect it can have on family relationships. He cited that lack of transparency can cause suspicion and concerns to escalate which we have seen in numerous cases. It is therefore perhaps, as is often the case, a question of balance; ensuring that public confidence in the benefits of creating both Health & Welfare and Property and Financial LPAs is maintained whilst at the same time strengthening transparency, independent oversight and safeguarding reporting mechanisms.