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THE MENTAL CAPACITY ACT: LIVING WILLS/ADVANCE DECISIONS AND LASTING POWERS OF ATTORNEY You may have heard about the Mental Capacity Act (MCA), which comes into force on 1st October 2007 - and you may or may not be aware that this Act could affect each and every one of us at some point in the future. This new law provides a statutory framework to empower and protect vulnerable people who find themselves, for a variety of reasons, unable to make their own decisions. This new law empowers people, in part, by enabling them to plan ahead for a time when they may lose mental capacity. The aspects of the Act which involve planning ahead are living wills/advance decisions, Lasting Powers of Attorney and advance care planning. A loss of capacity can be temporary or permanent. People may permanently lose capacity through a stroke, dementia, severe learning disability or head injury, or may have a temporary loss of capacity during a period of mental illness. (This list is not exhaustive).
It is important that everyone knows how they can use the new legislation to ensure they have as much input as they want surrounding their care in the unfortunate event that they lose capacity in the future. To help you understand your rights we have answered some frequently asked questions about living wills/advance decisions and Lasting Powers of Attorney in this article
You may or may not have been aware that living wills even existed. Dignity in Dying was among the first to supply living wills in the 1970's - and have continued to update and supply living wills to the public ever since. Living wills have been renamed 'Advance Decisions' in the Mental Capacity Act. Advance decisions enable you to make treatment decisions in the event that you lose the capacity to make those decisions yourself in the future. The Mental Capacity Act guidance states that the situations set out in the Advance Decision must be unambiguous. This means that you should be as clear and specific as you can. The Dignity in Dying pro-choice 'Advance Decision' document includes sections where you can add, in your own words, exactly the situations in which you would like to refuse or consent to treatment and include a statement about your values. Although the treating health care team will take your consent to treatment and your value statement into account when treating you, only advance decisions to refuse treatment are legally binding. We advise that you consult your GP when writing your advance decision to ensure that you understand the consequences of the decisions you are making and that your GP is aware of your wishes. It is then advisable to lodge copies of your Advance Decision with your GP, a close friend or family member, possibly your solicitor if you have one - and make sure you keep a copy for yourself.
You can use a pro-forma 'Advance Decision' document in which you stipulate what treatment you refuse and/or consent to - and you can purchase the new Dignity in Dying 'Advance Decision' document now. Contact and order details can be found at the end of this article. The alternative to a pro-forma 'Advance Decision' is asking a solicitor to draft your Advance Decision. Cost for this can vary, but research in 2006 from nineteen firms of local solicitors in the UK showed that people could pay between £141 and £423 for a solicitor to draft their Advance Decision.
If you have an existing living will and have decided to keep it and not fill in a new Advance Decision, the least you must do to make it valid under the new law is include the statement that: "The decision should apply even if it results in the shortening of my life" Then sign and date this addition, and have it witnessed.
The ongoing problem here is that there will still be no registration facility for advance decisions and, therefore, it is the responsibility of the individual to show that they have one. You can do this by carrying a copy of your Advance Decision with you, or by carrying a 'notice of advance decision' card, available from Dignity in Dying. At Dignity in Dying we are continuing to campaign for advance decisions to be logged centrally, to ensure that all Advance Decisions are accessible and adhered to.
The Lasting Power of Attorney is a legal tool created by the Mental Capacity Act. This is a legal document which would give a certain individual or individuals - e.g. a relative or friend - the power to make decisions on your behalf, should you lose capacity. The person making the LPA is the 'donor' and the person named in your LPA becomes your 'attorney'. There are two types of LPA: i) Finance and Property LPAs and ii) Personal Welfare LPAs. These can be the same person but two applications must be made. The LPA is then given authority to make certain decisions on behalf of the donor; the donor can specify which decisions the attorney can make, including the power to give or refuse consent to life-sustaining medical treatments on your behalf. The attorney must be over 18 and must have capacity themselves. The attorney is obliged to act in the best interest of the donor taking into consideration the donor’s past wishes and feelings, beliefs and values. You can opt to have a single attorney or joint attorneys who can act jointly or independently. A donor can withdraw the rights of the attorney at any point whilst they still have capacity.
Applications for LPA's must be made to the Office of the Public Guardian and there is a charge (the exact charge has not been announced at the time of writing this article). You can contact the Office at Public Guardianship Office at: Archway Tower Tel: 0845 330 2900 The Office of the Public Guardian’s role is to create LPA’s and to ensure the attorneys are not abusing their role.
Independent Mental Capacity Advocates (IMCAs) will be provided for people who lack capacity and have no friends or family. IMCAs will try to act in the best interest of the individual based on past and present wishes, feelings, beliefs and values.
LPAs can be created from 1st October 2007 and will replace existing EPAs. Existing EPAs will remain valid but new ones will not be able to be created.
The LPA regarding health (personal welfare) will only be consulted on health decisions when the donor has lost capacity and in the situations stipulated. In contrast, LPA’s dealing with finance and property will be effective as soon as the application is processed – unless stated otherwise in the form.
In general, an attorney will not have the power to give consent to treatment that is specifically refused in an Advance Decision. However, if the LPA is created after the advance decision, and specifically gives the attorney the power to give or refuse consent to the life-sustaining treatment in question, the LPA takes precedence and the Advance Decision becomes invalid.
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Dignity in Dying is an organisation campaigning for greater choice at the end of life. We support the Mental Capacity Act as a whole and are particularly pleased that it puts advance decisions on a statutory footing, and that it gives greater provision for patient choice at the end of life through the introduction of Lasting Powers of Attorney.
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