Accessing Medical Records and Lasting Powers of Attorney
The Office of the Public Guardian in England and Wales (OPG) issued guidance to the NHS on 10 November 2021 about accessing medical records, specifically “around disclosure of medical and care information to Attorneys and deputies to enable them to make best interest decisions on behalf of donor”.
What has changed about accessing medical records?
The guidance states “an Attorney holding a Lasting Power of Attorney (either Property and Affairs or Health and Welfare) (LPA) or a Court appointed deputy should be able to access relevant medical records of the vulnerable adult.”
The guidance goes on to say “Attorneys need to be able to make decisions in P’s [the donor’s] best interest as their legal representative. They will likely the unable to do so without P’s medical records. Therefore, the relevant information can be disclosed to enable them to discharge their role as an Attorney or deputy.” The OPG guidance also explains how the NHS should treat the request for information and what factors to consider before providing information.
Medical records and LPAs
At Longmores, we have been including specific wording giving access to medical records to Attorneys for both Property and Financial Affairs and Health and Welfare for a number of years as we have always considered that access to these records is important in order for Attorneys to be able to carry out their duties and make best interest decisions.
Clients often ask us “should I include any guidance or instructions in my LPA?” Our response is that they definitely should! We regularly include additional wording in relation to both Property and Financial Affairs matters and Health and Welfare matters, as appropriate, based on the particular needs and circumstances of our clients both currently and anticipated in the future.
What should be included in a Health and Welfare LPA?
We recommend that you think about including specific instructions regarding the following:
- How life sustaining treatment decisions should be made
- Whether the donor wishes to remain in their own home
- Whether the donor has any particular religious, cultural or other beliefs which need to be taken into account.
What should be included in a Property and Affairs LPA?
When we help you prepare your Property and Affairs LPA we may include wording regarding:
- How replacement Attorneys are appointed, such as the order in which replacements are appointed or whether they are to replace specific Attorneys
- Whether replacement attorneys should be acting jointly and severally or jointly
- Whether the Attorneys may delegate investment powers to a Discretionary Fund Manager
- Explaining which gifts an Attorney may make, after the donor has lost mental capacity
- Whether the donor expects to pay an Attorney for providing care
- Whether an attorney should be allowed to live in the donor’s property without paying rent.
Do LPAs need to be updated for access to medical records?
No, if you already have an LPA in place you do not need to update it in order to get access to medical records.
Here to help
If you need advice about Lasting Powers of Attorney, Deputyships, Court of Protection, please get in touch with Charles Fraser, head of the Older & Vulnerable client team.