The commencement of the Assisted Decision Making Capacity Act 2015, unfortunately, still has not occurred. This failure to commence the legislation is reprehensible as it leaves persons who either have no capacity or limited capacity in a very vulnerable position. For the moment the Enduring Power of Attorney legislation is the only legislation that gives any assistance in this area. A recent case entitled “C.A. v B.W. illustrates the problems that can arise. This case concerned the operation of the Powers of Attorney Act 1996. One family member challenged the decision taken by her two sisters. The two sisters were the Attorneys of their father. The decision had been made to place their father in a nursing home that decision split the family in two. One side wanted their father to reside in the family home. The others believed that their father was best placed in a nursing home. Sadly the matter went to the High Court. The High Court Judge stated that the Power of Attorney is the power to make personal care decisions in the best interests of the Donor, in this case the father. The High Court does have the right to review these decisions. The Judge continued the Court would be reluctant to interfere with a decision of an attorney unless there is some evidence that the decision made, in this case the decision to admit to a nursing home is not objectively reasonable. The Court will only review the decision of an attorney where it is manifestly not the donor’s best interest. The Judge ultimately rejected the challenge and allowed the father to be placed in a nursing home. This case demonstrates the importance of choosing the correct attorney/attorneys. Ideally, all family members should be made aware as to the creation of the Power of Attorney. The Donor should make his/her next of kin aware as to their views towards personal care decisions to include nursing homes, diet, dress etc. It is best to have these conversations before rather than after sadly when it is too late.
January 26th, 2021