The Mental Capacity Act (2005) provides two options to help us plan for the future and provide clear documented decisions in the case of deteriorating health. These are Advanced Decisions and Lasting Power of Attorney.
An Advanced Decision is a statement of instructions about which particular treatment(s) a patient may wish to refuse in the future, should they ever be unable to make the decision for themselves.
An Advanced Decision is commonly accompanied by an Advanced Statement, which is a personal declaration of values around what a patient feels is important in relation to their healthcare.
For further information, see these free resources:
- Your decisions and wishes in advance – easy read fact sheet (Department of Health)
- Advance decisions and advance statements – easy read patient information leaflet (NHS Northumberland, Tyne and Wear)
- Advanced decisions (Mind)
Lasting Power of Attorney
Lasting Power of Attorney (LPA) is a decision to allocate the responsibilities to make Best Interest decisions to a specific person. An LPA can apply to either health and welfare, or financial decisions. A patient can elect different attorneys for each.
Please note: the two forms of LPA differ slightly, in that the LPA for financial decisions comes into force as soon as it is registered. This means that an attorney can be assigned to work actively under direction of the person in question if they so wish, even while they still have capacity.
Mental Capacity and LPA
When it comes to assigning Lasting Power of Attorney, it is important that the person who is signing over their LPA is judged to have full capacity to make this very important and specific decision. This includes understanding what an LPA is, who they are assigning it to (and why), as well as their rights surrounding the decision.
It is important to note then that a Mental Capacity Assessment for an LPA is not assessing their ability to manage their health and welfare or financial decisions. Rather, it is assessing their ability to make the decision about assigning the LPA.
If the individual is unable to demonstrate capacity to allocate an LPA, the assessment would then judge their ability to self-manage in these domains. If they are deemed unable to manage in these areas then an application should be made to the Court of Protection in order to assign an appropriate deputy for one or both of these domains.
For further reading see these free resources: