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Managing someone's legal affairs

Advance decisions

The Mental Capacity Act 2005 came into force on October 1 2007 and affects the way people make decisions about their future care if they lose mental capacity. This includes decisions on whether they want life-saving treatment and to participate in research.

Advance decisions

If the person you care for is aged 18 or older and has mental capacity they can appoint a personal welfare lasting power of attorney (LPA). The person who is given power of attorney (the 'attorney') will be able to make decisions about future medical treatment on their behalf if the person doesn't have the mental capacity to make the decision.

If the person you care for wishes to refuse medical treatment in the future, they should make their wishes known by making an 'advance decision' (previously known as an 'advance directive'). This is made when the person still has capacity and is used if they're not able to make the decision themselves at the time of the proposed medical treatment.

If the person you're looking after makes an advance decision, you can't override it unless the LPA was made later and specifies that you have the power to do so.

An advance decision can be made verbally or in writing. The code of practice in the Mental Capacity Act provides a checklist of information to be included in any written statement. The statement should include:

  • Full details of the person you act for and who is making the statement, including their date of birth, home address and any distinguishing features (so that an unconscious person, for example, could be identified).
  • The name and address of their general practitioner (GP).
  • Whether the GP has a copy of the statement.
  • Something to say that the decision is intended to have effect if the person you're looking after lacks the capacity to make treatment decisions.
  • A clear statement of the decision, specifying the treatment to be refused and the circumstances in which the decision should be used or which will trigger a particular course of action.
  • The date the document was written and, if appropriate, the date it was reviewed.
  • The person’s signature. If the person can't write, they must give authority to somebody else to sign on their behalf in their presence.
  • A signature from a witness to the above.

Life-saving treatment

If the person you're looking after has made an advance decision to refuse life-sustaining (or life-saving) treatment in the future, then the document must be in writing and signed by:

  • the person you're looking after (or in addition, someone they have authorised to sign on their behalf and in their presence), and
  • a witness to the signature of the above.

The advance decision must then also include a specific statement by the person you're looking after which:

  • clearly states that it relates to the treatment they have specified “even if life is at risk”, and
  • is signed in the same way in the presence of a witness who must also sign the statement.

Whether treatment is life sustaining or not depends not only on the type of treatment but also on the individual circumstances in which it is prescribed.

For example, in some cases, giving antibiotics to the person you're looking after may help to keep them alive, whereas in other situations the same medication might be prescribed to treat conditions that aren't life-threatening.

The person you're looking after cannot make an advance decision refusing measures necessary to keep them comfortable, such as warmth, shelter and hygiene.

Research

The Mental Capacity Act contains safeguards for many types of research involving people who lack capacity to agree to it. It tries to balance the wishes of people who lack capacity to benefit from properly conducted research with the need for the strict safeguards set out in European law. The act talks about ways of consulting people, approval of the safety of the research and levels of risk and intrusion.

The act says that the interests of the incapacitated person are more important than the interests of science and society.

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The 1 comments posted are personal views. Any information they give has not been checked and may not be accurate.

roger downing said on 30 September 2011

It would be helpful if the NHS provided a proforma statement for making an advance decision on this website. It would be even more helpful if advice was given on how to file this statement with the NHS such that it will be acted upon when required.

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Page last reviewed: 09/05/2012

Next review due: 09/05/2014

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