Lasting Powers of Attorney
A Lasting Power of Attorney (LPA) allows the person making it (the donor) to give power to someone else (the attorney) to make decisions on their behalf. There are two types:
- A property and affairs LPA covers issues such as managing a bank account and buying or selling a home. This type of LPA may allow the attorney(s) to make decisions whether or not the donor has lost capacity to make them.
- A personal welfare LPA covers issues such as social care and medical treatment. Under this type, the attorney(s) can only make decisions once the donor lacks the capacity needed to make those decisions.
Certain rules must be complied with for an LPA to be valid. Further information can be obtained from the Office of the Public Guardian (OPG) or Mind’s Legal Line.
An advance decision (formerly known as an ‘advance directive’) enables a person to control what medical treatment they receive when they no longer have the capacity to make decisions about that treatment. A person can state in their advance decision what types of treatment he or she does not want to be given if they ever lose capacity. Advance decisions are legally binding and must be followed by doctors and other health professionals, as long as they meet certain conditions.
It was possible to make an advance decision before the Mental Capacity Act came fully into force on 1 October 2007, but the MCA introduced rules that must be followed for an advance decision to be valid and applicable. Anyone who made an advance decision before the MCA rules came into force, should check that it complies with the current rules.
Further information about advance decisions and about the rules for making one, can be obtained from the Office of the Public Guardian. However, three particular issues should be considered:
- A person cannot demand a particular treatment in an advance decision; it can only cover the types of treatments the person would wish not to be given.
- An advance decision must be in writing and witnessed if, in the view of the person providing health care, it applies to “life-sustaining treatment”. There are no formalities for making advance decisions that do not apply to life-sustaining treatment, but it is probably better for people to write their decision down on paper.
- Where it is valid, an advance decision only comes into effect once the person concerned has lost capacity in relation to the decision(s) it covers.
Can I be treated if I have made an LPA or an advance decision?
LPAs and advance decisions do not allow people to refuse to be detained (“sectioned”) or, generally, to be treated without their consent under the MHA.
This means that you could be detained under the MHA even if you have lost capacity to decide whether to be admitted to hospital and you have an attorney who says that you should not be admitted. Similarly, if you have made an advance decision stating that you do not wish to be admitted to hospital if your mental distress becomes so severe that you lose capacity to consent to admission, you can still be detained. Once you are detained, you can be given treatment for mental disorder even if you have an attorney who decides that you should not be given that treatment or if you have made an advance decision stating that you do not want that treatment. The views of your attorney or those set out in your advance decision should be taken into account by the professional treating you, but they are not legally binding when MHA powers apply. The exception is with ECT which the professionals wish to give you following your detention under the Mental Health Act. If you have already made a valid and applicable advance decision refusing ECT, or a donee (attorney) under a Lasting Power of Attorney, a court-appointed deputy, or a Court has refused ECT on your behalf, then the ECT cannot be given to you.