Planning for the future
No one knows when they might lose capacity. It could happen through illness or injury, for example, or it could be a condition someone has that will eventually lead to a loss of capacity; and in the early stages of a deteriorating illness it is a good idea to start planning for the future.
The Mental Capacity Act allows everyone to plan for a time when they may lack capacity, by making an Advance Decision, Advance Statement or selecting a Lasting Power of Attorney (LPA).
Lasting Powers of Attorney (LPA)
There are two types of Lasting Powers of Attorney:
- A Property and Affairs LPA who makes decisions about the person’s finances
- A Personal Welfare LPA who makes decisions about medical and social care
The same person can be nominated to act in both roles, and the donor can choose the scope of the decisions to be made.
Before the MCA came into effect there was an Enduring Power of Attorney (EPA) relating to financial decisions only. It is no longer possible to make one of these, but any EPAs submitted before 30 September 2007 are still valid.
An LPA makes decisions as if they are the person, and they must act in the person’s best interests. If there are concerns around this, it may be appropriate to refer the case through the Safeguarding Adults process, and the Office of the Public Guardian (OPG) can also monitor these.
It is possible to register or confirm a valid LPA or EPA by consulting the Office of the Public Guardian who updates and holds these records (see link below).
Advance Decisions and Statements
An advance decision is a legally binding statement refusing medical treatment. It must be made by someone who is at least 18 years old and it must be valid and applicable i.e. the person must have capacity at the point in which they make the decision and must relate to the specific situation in which the treatment is being offered.
An advance statement can be made about any aspect of care or accommodation or lifestyle. This would be considered as evidence of the person’s wishes when a best interests decision is being, but is not legally binding.