Commentary on Sections Part 5 – Lasting Powers of Attorney Chapter 1 - Lasting Powers of Attorney Section 98 – Restrictions on scope of lasting power of attorney
LPAs covering care, treatment and personal welfare decisions can only be used where the donor lacks capacity or the attorney reasonably believes that the donor lacks capacity.
LPAs are also subject to effective advance decisions made by the donor, to the extent provided for in section 99, noted below. LPAs for care, treatment and personal welfare decisions may include authority to give or refuse consent to health care treatments, subject to any conditions or restrictions in the LPA instrument; however, giving or refusing consent to life-sustaining treatment is only permitted where the LPA instrument expressly says so.
Restraint can only be used by the attorney to prevent harm to the donor who lacks capacity and in that case, the restraint must be proportionate to the seriousness and likelihood of the harm occurring. LPAs do not authorise an attorney to deprive the donor of his or her liberty, nor does the attorney have the right to consent to psychosurgery on behalf of the donor (and regulations may specify other treatments which the attorney cannot authorise).
Section 98 also provides that an LPA executed before the donor has reached the age of 18 has the same effect as an LPA executed by a donor aged 18 or over, except that while the donor is under the age of 18, the attorney will have no greater power to make decisions than the donor him or herself would have had, if he or she had retained capacity.