But there are also types, or is it the difference between Enduring Power of Attorney and Lasting Power of Attorney, I never remember. Anyway, when the subject loses capacity, the
power of attorney has to be registered with the Public Guardian. (With the financial one – once it’s registered and you present that at their bank, the subject cannot continue to have any control over their accounts – the bank will cancel any bank cards they
have.)
So that’s my understanding – once they’ve lost capacity and the PoA is registered with the Public Guardian, the attorney is acting as the subject, and so should have access to their
data.
Hilary Pook
Data Protection Officer
The Bar Council
Tel: 020 7611 1398
From: This list is for those interested in Data Protection issues
<[log in to unmask]>
On Behalf Of Paul Ticher
Sent: 17 September 2019 10:08
To: [log in to unmask]
Subject: Re: [data-protection] Data subject’s expectations and wishes
It's not levels, it's types of LPA. There is one for financial affairs, under which the attorney can act alongside the donor, while the donor still has some capacity. (So, for example, I managed my father's
bank account and made sure his bills got paid, while he still had a card for taking cash out and buying his groceries.) The other, for health and welfare, can only come into effect once the donor has been confirmed (in my case by the relevant social worker)
as no longer having the capacity to make their own decisions and the attorney can then make decisions on where the donor lives, on medical treatment, etc, subject to any restrictions in the LPA and always, of course, in the best interests of the donor and
in line with their likely preferences as far as possible.
A possible source of confusion in the case under discussion seems to be that the data is required under a financial LPA, but the data itself relates to health issues. If the attorney holds both types of LPA
and the donor has lost capacity, I would tentatively suggest that there should be no problem in providing the information to the attorney since they are, in effect, acting as though they are the donor. If they don't hold both types, or if the donor still
has capacity over health and welfare the attorney would have to be treated as a third party in respect of the disclosure of health data. Probably.
Best wishes,
Paul
Paul Ticher
22 Stoughton Drive North, Leicester LE5 5UB
0116 273 8191
On 16/09/2019 19:30, Steve Cotterill wrote:
Just a quick thought on this but as I understand it there are two 'levels' of LPA. One where the 'power of attorney' is able to act straight away for the 'donor/grantor',
the other level is where the ''power of attorney' can only act for the 'donor/grantor' once they have lost 'capacity.
So there could be a couple of reasons
1) The LPA has willingly been granted
2) The data subject no longer has capacity to act for themsleves.
