You may have to make decisions on behalf of a loved one who, because of illness, a learning disability, or health condition, may lack mental capacity to make certain decisions for themselves. Also, you may want to plan ahead should you be unable to make decisions in the future. The legal framework for empowering and protecting people who may lack capacity to make their own decisions is provided by the Mental Capacity Act 2005.
This section outlines the types of decisions, how they can be managed, and the rights of the person you care for.
Advance Decisions (living wills)
An advance decision (sometimes known as an advance decision to refuse treatment) gives a person with capacity the opportunity to make decisions regarding specific medical treatment that they may not wish to receive in the future. This can include a refusal to receive treatment should the need arise at some point in the future and they have lost capacity to make their wishes known.
Advance decisions are legally binding upon the persons proposing the treatment as long as they meet the requirements for them to be valid. A person who makes an advance decision can revoke it at any time while they have mental capacity.
Further information about advance decisions is available on the NHS website.
Advance Statements (statements of wishes)
An advance statement (sometimes known as a statement of wishes) gives a person who has capacity the opportunity to express their views and wishes relating to their future health or social care. An advance statement can include any dietary preferences, or religious or cultural arrangements, as well as the type of care the person would like to receive and where they wish to live.
An advance statement is not legally binding but whoever is making decisions about your care must take it into account.
Further information about advance statements is available on the NHS website.
Managing a person's finances and other matters
If a person is no longer capable, is unable or no longer wishes to manage their own finances and other matters, there are a number of options available to allow another person to assist. Depending on the circumstances, they can either:
- appoint an appointee to manage a person's benefits, or
- grant powers under a lasting power of attorney.
If someone has lost mental capacity a third party would need to apply to be a deputy to take over the responsibility.
Appointeeship for someone claiming benefits
An appointee is someone chosen by the DWP (Department for Work and Pensions) to receive and manage benefits on behalf of another person who is unable to do this for themselves due to physical disability or mental incapacity. The appointee can be a family member or a friend. To apply to become an appointee you need to make a written request to the DWP who will then explain the procedure for what happens next.
Further information about appointeeships and how to apply is available on the Gov.UK website.
Lasting powers of attorney (LPA)
If you think you may need someone to act in your best interests, you (known as the donor) can make a lasting power of attorney which lets you appoint one or more people (known as attorneys) to make decisions on your behalf. By appointing one or more attorneys you will be giving written authorisation for them to represent you should that be needed. You must have appointed your attorneys before you lose capacity and you must register the LPA for it to take effect. Attorneys do not need to be British citizens or live in the UK.
There are two types of LPA that you can appoint attorneys for:.
- Property and Affairs - for managing all matters relating to your property and financial affairs eg. managing a bank account, paying bills, collecting a pension or benefits, selling your home.
- Health and Welfare - for decisions relating to your health and welfare eg. your daily routine, medical care, life-sustaining treatment, moving into a care home.
Ending a LPA - The Office of Public Guardian is responsible for registering LPAs and they can end (revoke) a LPA if it found the attorneys were not acting in the donor’s best interests. Also, a donor who retains mental capacity can revoke a LPA at any time.
For further information and to make a lasting power of attorney visit the Gov.UK website.
If someone has not appointed an LPA and lacks mental capacity to make decisions, the matter can be referred to the Court of Protection where a Deputy can be appointed to act in the person’s best interest as explained below.
If a person no longer has mental capacity because, for example, because they have dementia, severe learning disabilities, or a serious brain injury or illness, then a deputy can be appointed who is given responsibility for managing all of the person's financial affairs and personal welfare. This includes the person’s medical treatment and other care, their income, savings, investments, pensions or assets including any property and valuables.
Using a deputyship to manage a person’s decisions is more appropriate if the person's financial affairs are more complicated and they are not in receipt of benefits. You can only apply to become a deputy for a person if they lack capacity to make decisions at the time it needs to be made.
The two types of deputyships that can be applied for are:
- Property and affairs – for decisions relating to finances and property, such as savings, paying bills, and assets.
- Personal welfare – for decisions about how a person is looked after and their medical treatment.
Reporting a concern about a deputyship – The Court of Protection is responsible for appointing deputyships. If there is a concern about a deputy not acting in the best interests of the person they are responsible you can report a concern about a deputy.
For further information and to apply for a deputyship visit the Gov.UK website.