Mental Capacity and Planning Ahead
We all hope to live full lives without the expectation of mental incapacity. However, it’s a common misconception that this is only a concern for the elderly population, or those who have been diagnosed with dementia.
The truth is that mental incapacity can affect any of us, at any age. Having provisions in place is critical in protecting your wishes and providing practical support to your loved ones.
Mental incapacity can be temporary or permanent, and can arise as a result of:
- An accident
- Medical negligence
- A sudden illness, such as a stroke
- A progressive illness, such as dementia or Parkinsons
- Severe mental health issues
- Severe learning difficulties
People often view this type of planning in a similar way to insurance. You hope you won’t need to invoke these plans, but having them in place provides significant peace of mind to you, and practical assistance to your loved ones.
Lasting Powers of Attorney
A Lasting Powers of Attorney (LPA) is the most common method of planning ahead. It allows you to choose a trusted person (or multiple people) to act on your behalf if you become unable to make decisions for yourself. For example, if you were in hospital and unable to manage your bank account, pay your mortgage or other bills, having an LPA in place would allow the management of your affairs to continue.
There are two types of LPA – one covering financial decisions, and one covering welfare decisions.
LPAs are critically important but often overlooked by people who believe their will achieves the same purpose (it doesn’t!).
If a person has lost mental capacity to put an LPA in place, the only option is for their loved ones to apply for Court of Protection Deputyship. This is a much lengthier and costlier process and removes the autonomy of the person to choose who they want to act for them.
In short, an LPA is a relatively inexpensive way to ensure you have peace of mind over the management of your finances and health decisions if something were to happen to you. Read more about LPAs here.
Advanced Decision (“Living Will”)
An Advanced Decision (sometimes called a Living Will) is a declaration where you can refuse specific care or treatment that you do not want to receive in future.
A properly executed Advanced Decision is legally binding and must be followed by medical practitioners. It must be made while you have mental capacity, and it must be specific about the circumstances when it will apply and the treatment which is being refused.
An example is someone may specify that if they have a terminal illness, they wish to refuse treatment which would prolong their life but not improve the quality of life, for instance CPR or artificial nutrition.
Advanced Statement
An Advanced Statement is a declaration where you state your wishes and preferences about your future care.
An Advanced Statement usually covers the type of care/treatment you wish to receive. It can also include where you want to receive care (home, hospital, other), who you would like to be consulted about your care decisions, your food and drink preferences, and any religious or cultural beliefs.
An Advanced Statement is not legally binding, but it should be considered when making a decision in your best interests.
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FAQs
Not unless they have been appointed as your attorney under a Lasting Power of Attorney (LPA) or as your deputy by the Court of Protection. It is a common misconception that spouses can make these decisions or manage bank accounts, but without an LPA in place, this is not the case.
No, a Will only comes into effect upon death. During your lifetime only your attorney (or deputy) can help with decision making if you have lost mental capacity.
This will depend on your circumstances. It’s possible that your LPA covers your needs without the requirement for an Advanced Decision.
A Health and Welfare LPA and an Advanced Decision overlap on some decisions, so it’s important that they don’t conflict with each other. This would cause confusion and may cause one to cancel out the other. If you intend to have both documents in place, it’s recommended that they are drafted at the same time so that they can complement each other and achieve your wishes.
They cover different perspectives on your future care – an Advanced Decision is a negative declaration to refuse treatment whereas an Advanced Statement is a positive declaration to request treatment, state your wishes and preferences.
An Advanced Decision is legally binding. An Advanced Statement is not but must still be taken into account when planning your care.
Jeremy Allen
Partner & Head of Trusts and Court of Protection
Jeremy Allen is a Wills, Probate and Trusts specialist at Rothera Bray Solicitors and is based at our Lace Market offices in the heart of Nottingham City Centre.
Emily Gordon
Senior Associate
Emily Gordon is a Senior Associate in Rothera Bray’s Mental Capacity and Court of Protection department and is based at our Nottingham office.
Lyndsey Hudson
Solicitor
Lyndsey is a Solicitor in Rothera Bray’s Mental Capacity and Court of Protection department. She is based at our Nottingham office.
Louise Mathison
Senior Paralegal
Louise Mathison is a Senior Paralegal in Rothera Bray’s Mental Capacity and Court of Protection department and is based at our Lace Market, Nottingham office.
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