Lasting Power of Attorney and Advance Decisions to Refuse Treatment

1. Lasting Power of Attorney (LPA)

The Purpose of a Lasting Power of Attorney

Sections 9-14 of the Mental Capacity Act set out the role of the Lasting Power of Attorney (LPA).

A Lasting Power of Attorney is a legal instrument whereby a person over the age of 18 who has capacity (legally known as the donor) grants another person (legally known as the donee) the authority to make a decision (or decisions) on their behalf at such time when they lack the capacity to do so.

Granting a Lasting Power of Attorney

In all circumstances, a Lasting Power of Attorney can only be granted;

  1. By a donor from the age of 18; and
  2. By a donor who has the mental capacity to do so; and
  3. To a donee who is appropriate to hold the position under the Mental Capacity Act.

In all circumstances a donee granted a Lasting Power of Attorney is only permitted to make decisions when;

  1. The donor is no longer able to make the decision (they lack capacity); and
  2. The decision is clearly set out in the Lasting Power of Attorney.

Who can act as Lasting Power of Attorney

Under the Mental Capacity Act anyone from the age of 18 can be granted donee of a Lasting Power of Attorney unless the decision is in respect of property and affairs and the proposed donee is bankrupt or has a debt relief order against their name.

If the decisions set out in the Lasting Power of Attorney only relate to property and affairs the donee can also be a trust corporation.

The donor can decide to appoint a single donee or multiple donees. Where there is more than one donee the donor must set out;

  1. Whether the donees must act jointly; or
  2. If they can act independently; and
  3. Any specific conditions or circumstances that apply for particular decisions.

If the Lasting Power of Attorney does not set out how joint donees must act the Mental Capacity Act takes the position that they will act jointly.

The Lasting Power of Attorney cannot authorise a donee to appoint a successor or substitute. This can only be done by the donor.

When a Lasting Power of Attorney cannot be used

In all circumstances a Lasting Power of Attorney cannot be used;

  1. When the person has capacity to make their own decision; or
  2. To make a decision that is not clearly set out in the Lasting Power of Attorney.

A Lasting Power of Attorney can also not be used when;

  1. Confirmation of the person’s capacity to grant the Lasting Power of Attorney is not noted;
  2. The Lasting Power of Attorney does not clearly set out the decision (or decisions) that can be made; or
  3. The person granted a Lasting Power of Attorney is not permitted to act under the Mental Capacity Act.

Decisions that can be made

The person arranging the Lasting Power of Attorney must set out the nature of the decisions that the person granted Lasting Power of Attorney will be able to make on their behalf. This will be;

  1. General decisions relating to the person’s personal welfare;  and/or
  2. Specific decisions relating to the person’s welfare; and/or
  3. General decisions relating to the person’s property and affairs; and/or
  4. Specific decisions relating to the person’s property and affairs.

Where decisions can be made generally the donee is able to make all decisions as set out in the Mental Capacity Act, and must refer to the Court of Protection for those decisions that are excluded.

Click here to access guidance about the decisions that can and cannot be made under the Act.

Making decisions

Anyone acting as a Lasting Power of Attorney has a statutory obligation to apply the Mental Capacity Act before making any decisions. This includes;

  1. Upholding the 5 statutory principles of the Act;
  2. Taking reasonable steps to establish whether the person lacks capacity; and
  3. Based on the evidence available, having a reasonable belief that the person lacks capacity; and
  4. Based on the evidence available, having a reasonable belief that the decision made and/or action being taken is in the person’s Best Interests; and
  5. Making sure that any decision made does not lead to the unlawful use of restraint or deprivation of liberty.

Use of the donor’s financial resource

If the donee granted Lasting Power of Attorney has the authority to make general decisions regarding property and affairs they are not authorised to use the money to make gifts to others except;

  1. On customary occasions  to people who are related to or connected to the donor; and
  2. To any charity to whom the donor made or can reasonably be expected to have made a gift.

The amount of gift made by the donee must be reasonable taking into account all of the circumstances, including;

  1. The size of the donor’s estate;
  2. The nature of the occasion;
  3. The nature of gifting associated with the donor before they lacked capacity; and
  4. The connection of the person receiving the gift to the donor.

The Mental Capacity Act also permits the donee to make a gift to him or herself if it is deemed reasonable using the guidance above.

Registering the Lasting Power of Attorney

The Lasting Power of Attorney is not a legally binding authority for the donee to act until it has been registered. However, any person who acts as a donee regarding an unregistered Lasting Power of Attorney is protected under the Mental Capacity Act so long as;

  1. They did not know that the Lasting Power of Attorney had not been registered; and
  2. They are not aware of any circumstances that would make then unsuitable to act as a donee.

Revoking authority in a Lasting Power of Attorney

Authority granted to a donee through a Lasting Power of Attorney can be revoked at any time by the donor if they have capacity to do so.

Authority can also be revoked when;

  1. The specific decisions within it are no longer relevant to the donor’s circumstances; or
  2. The decisions within the Lasting Power of Attorney have all been made; or
  3. The donee is no longer permitted to act under the Mental Capacity Act; or
  4. A trust corporation (where relevant) is winding up or dissolving; or
  5. The donee themselves lacks capacity to act.

If there are multiple donees and one of the donees is no longer permitted or able to act, the Lasting Power of Attorney itself can continue with any remaining donee/s in place.

Authority can be partially revoked when;

  1. Changes are made by the donor if they have capacity to do so;
  2. The donee is no longer able to act in regard to property or affairs, but can continue to act in matters of personal welfare.

The power of the Court of Protection to revoke, decline to register, alter or monitor a Lasting Power of Attorney

Under sections 22 and 23 of the Mental Capacity Act the Court of Protection has specific powers to review the appropriateness and validity of a Lasting Power of Attorney (either register or unregistered) at any time.

Subject to review, and it being in the person’s Best Interests the Court can revoke, or decline to register a Lasting Power of Attorney when it finds;

  1. The donee has behaved, or is behaving in a way that contravenes the authority given to them; or
  2. The donee has behaved, or is behaving in a way that is not in the person’s Best Interests; or
  3. The donee proposes to behave in a way that contravenes the authority given to them or would not be in the person’s Best Interests.

The Court can also revoke, or decline to register a Lasting Power of Attorney if it finds that;

  1. Undue pressure was placed on the person to create or register the Lasting Power of Attorney; or
  2. Fraud was used to induce the person to create or register the Lasting Power of Attorney.

If there is more than one donee of a Lasting Power of Attorney the Court can decide to revoke the authority of as many donees as it deem necessary.

If the Court deems it in the Best Interests of the person it may;

  1. Amend the nature or scope of any decision that the donee has been authorised to make;
  2. Give additional authority to the donee to make decisions outside of those in the Lasting Power of Attorney;
  3. Permit the donee to purchase gifts with the person’s financial resource outside of the gifts they are permitted to buy; and
  4. Authorise expenses or remuneration to the donee in carrying out their role.

If the Court deems it necessary it can direct (order) a donee to provide reports, accounts and other information regarding their role.

Under schedule 1 of the Mental Capacity Act the Public Guardian (the office responsible for maintaining a register of Lasting Powers of Attorney) must cancel a registration upon direction from the Court.

2. Advance Decision to Refuse Treatment (ADRT)

The purpose of an Advance Decision to Refuse Treatment

Sections 24-26 of the Mental Capacity Act set out the role of the Advance Decision to Refuse Treatment (ADRT).

The ADRT is a legally binding decision that can be made by any person from the age of 18 with capacity, who wishes to set out specific circumstances in the future when they should not;

  1. Receive specific medical treatment/s; or
  2. Continue to receive specific medical treatment/s; when
  3. They no longer have capacity to provide or refuse consent.

Preparing an ADRT

ADRT’s can only be made when the person making it;

  1. Is aged 18 or over at the time it is made; and
  2. Has capacity to do so.

The following information must be clearly set out in the ADRT;

  1. The specific circumstances where treatment is to be refused or withdrawn; and
  2. The specific treatment that is being refused or is to be withdrawn.

If specific circumstances and treatments are not clearly set out in the ADRT it is invalidated.

Additional requirements for life sustaining treatment

Where the ADRT refuses life-sustaining treatment the person must prepare a written statement specifically setting out that the treatment is to be refused or withdrawn even if their life is a risk. This statement must then be;

  1. Signed by the person (or another person under their direction if they are physically unable to sign); and
  2. The signature is made or acknowledged by the person in the presence of a witness; and
  3. The witness signs it, or acknowledges his signature in the person’s presence.

Withdrawing and altering an ADRT

The Advance Decision to Refuse Treatment can be withdrawn or altered at any point by the person who prepared it, so long as they have the capacity to do so.

The withdrawal of an ADRT (either in full or partially) does not need to be given in writing, which allows for the person to withdraw it urgently if required.

The alteration of an ADRT does not need to be given in writing, unless the alteration relates to the addition of a refusal to receive life sustaining treatment.

In this case, the additional requirements for life sustaining treatment set out above apply.

Using an ADRT

The Advance Decision to Refuse Treatment can only be used if;

  1. The person was 18 or over when the decision to refuse or withdraw treatment was made; and
  2. The person had capacity when the decision was made; and
  3. The person lacks capacity to make a decision now; and
  4. The person does not have a Lasting Power of Attorney that gives a donee the power to make a decision over the treatment specified; and
  5. The circumstances that the ADRT should be used are clear; and
  6. The treatment that is being refused is clear; and
  7. The person has done anything else clearly inconsistent with the ADRT remaining their fixed decision.

If all of these apply the ADRT should be given the same authority as if the person had capacity and made the decision themselves.

When an ADRT cannot be used

The Advance Decision to Refuse Treatment cannot be used when;

  1. The person has capacity to consent or refuse treatment; or
  2. The treatment is not the treatment specified in the ADRT; or
  3. The circumstances of the person are not those specified in the ADRT; or
  4. The person has a Lasting Power of Attorney authorising a donee to make a decision regarding the specific treatment set out in the ADRT; or
  5. There are reasonable grounds to believe that circumstances or information exits which, if the person had been aware of would affect the ADRT; and
  6. In the case of life sustaining treatment, the person has not prepared, signed and sought witness to a written statement authorising for the treatment to be withdrawn of withheld ‘even if life is at risk’.

The role of the Lasting Power of Attorney

The Lasting Power of Attorney cannot provide powers to any donee to alter or withdraw an Advanced Decision to Refuse Treatment unless the Lasting Power of Attorney specifies that the donee can make a decision about the specific treatment that is to be provided.

Consequences for health practitioners

Where a health practitioner reasonably believes that there is an ADRT that is applicable to the treatment and circumstances of the person, and that the ADRT is valid the Mental Capacity Act protects them from liability if they;

  1. Withhold treatment; or
  2. Withdraw treatment.

Where health practitioners reasonably believe that there is no ADRT or that an ADRT is not applicable to the treatment and circumstances the Mental Capacity Act permits protects them from liability if they;

  1. Provide treatment;
  2. Continue to provide treatment; and
  3. Provide life sustaining treatment.

Health practitioners can continue to do so until;

  1. The validity of any purposed ADRT is tested; or
  2. A decision is made by the Court of Protection to validate an ADRT or make a decision about continuing specific treatment.

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