14 Aug 2019

The Mental Capacity Act 2005 allows people to decide if they would like to appoint trusted individuals to make decisions in relation to their health and care if they lack capacity; or if they would prefer to deal with these matters themselves. As both documents have vastly different functions, it is difficult to know which best suits your circumstances. In this blog, we discuss your options…

Lasting Power of Attorney for Health and Welfare

This is a general form allowing you to appoint an ‘attorney’ i.e. someone you trust, to make decisions regarding your Health and Care should you lack the mental capacity to make these decisions.

Your attorney will have authority to deal with almost all situations regarding your health and welfare. These decisions can include the type of care you would receive, where treatment would be provided, who can visit you, and life sustaining treatment.

It is important to ensure the attorney appointed is aware of your values, ensuring they respect these and make decisions as you would.

As the UK population is living longer than before, unfortunately, the diagnosis of diseases such as dementia and Alzheimer’s are growing.

It is impossible however to predict what decisions may need to be made for you in the future should you become incapacitated. When family are faced with these dilemma’s, it is sometimes impossible for them to know what their loved one would want. The best person to make these decisions, is you.

By putting in place a Lasting Power of Attorney for Health and Welfare, your family can be sure that they are making the decisions you would want.

An Advanced Decision

An Advanced Decision allows you to decide, whilst you still have mental capacity, what medical treatment you want to refuse. This then takes effect if you are unable to communicate this decision i.e. you are on life sustaining treatment.

Provided the Advanced Decision is valid and applicable, the contents are legally binding on the healthcare professionals.

Unlike the Lasting Power of Attorney, you can only refuse treatment. An Advanced Decision does not allow you to specify the type of care you would like to receive. To that end, it is advisable to discuss the contents of your Advanced Decision with your GP. They will be able to provide you with guidance as to what you would need to include resulting from your personal circumstances and the effect of certain instructions you may wish to give.

If you feel a Lasting Power of Attorney and an Advanced Decision would be beneficial to you, it is possible to have both. However, the timing for putting them in place is crucial. If you make a Lasting Power of Attorney after your Advanced Decision, your attorney is able to override the Advanced Decision so long as you have given them authority to deal with the decision in question.

If you make the Advanced Decision after the Lasting Power of Attorney, your attorney cannot override what is written in the Advanced Decision. If, however a decision needs to be made which is not detailed in your Advanced Decision, they can still make this.

Both a Lasting Power of Attorney and Advanced Decisions are beneficial to you. It is however imperative to seek legal advice to ensure your wishes are carried out, with as little ambiguity created as possible for both the health professionals and your family.

We can advise on these issues to help you find the best option for you. Call us 01633 867000 or email Damian.lines@rlo.law