This is a plain language summary of the topics we talked about during our third CLARiTY Session.
In our third CLARiTY session, we talked about four things:
- Lasting Powers of Attorney
- Advance Decisions to Refuse Treatment
- Advance Statements
Prof Rosie Harding introduced the session by reminding us to think about what we talked about in our second CLARiTY session on supported decision-making and best interests decision-making [link]. This is because the tools we talked about in session 3, and outlined here, follow on from supported decision-making and best interests under the Mental Capacity Act.
You can watch Rosie’s introduction to the session here:
Rosie introduced us to the four tools in the Mental Capacity Act 2005 that allow more support for decision-making: lasting powers of attorney, deputyship, advance decisions to refuse treatment, and advance statements. We talked in detail about Lasting Powers of Attorney and Deputyship, and Advance Decisions and Advance Statements were covered in less detail. All these tools are available to people age 18 and older.
Rosie said that when we think about support with decision-making, we must remember that nobody can be considered to lack capacity to make a decision unless they have been given support to make it and that support has not helped them to be able to make the decision themselves. This means that supported decision-making always comes first. We must not jump to the four tools we talk about in this summary because disabled people always have the right to try and make decisions about their own lives and should always have choices about what happens to them.
Lasting Powers of Attorney
We talked about two kinds of Lasting Powers of Attorney available under the Mental Capacity Act:
- Lasting Power of Attorney for Health and Welfare decisions like consenting to medical treatment or where you live.
- Lasting Power of Attorney for Property and Financial Affairs like managing money, bank accounts, investments, savings, and budgeting.
Anyone can make a Lasting Power of Attorney, as long as they have the mental capacity to make that decision. Lasting Power of Attorney allows us to choose someone to make decisions our behalf in situations when we lack mental capacity.
You can choose to make Lasting Powers of Attorney for financial matters or welfare matters or both kinds of decisions. You need to fill in a separate form for each type of Lasting Power of Attorney. You can choose one person (or more than one person) to make decisions about financial matters and a different person/people to make decisions about health and welfare, or they can be the same person. Even if you decide to give the same person power of attorney over both financial and welfare matters, you will need to fill in two separate forms.
Your chosen attorney can only make decisions specific to the Lasting Power of Attorney they have. So if someone has a Lasting Power of Attorney for financial decisions, they cannot then make decisions about health and welfare matters. They might be consulted for in best interests decisions about medical treatment, but they do not have the power to make that decision.
The Office of the Public Guardian is responsible for registering Lasting Powers of Attorney. Most registered Lasting Powers of Attorney are for financial matters and only a small proportion are for health and welfare. This is because health and welfare powers only started to be available in 2007, but financial powers have been available for much longer.
To help put these legal tools into context, Rosie told a story about Alex, who took part in the Everyday Decisions project, which you can view here:
Lasting Power of Attorney can last indefinitely but you can cancel it anytime as long as you have the mental capacity to do so. You need to fill in a different form to cancel a Lasting Power of Attorney.
How to make a Lasting Power of Attorney
- There is information about making Lasting Power of Attorney on the website of the Office of the Public Guardian.
- You can make a lasting power of attorney online or using online forms.
- You can download the paper forms here: https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney.
The forms need to be signed by the attorneys, witnesses and a ‘certificate provider’. A certificate provider is someone who can confirm that you are making the Lasting Power of Attorney by choice and you understand what you are doing. Everyone involved must sign the same original document. No one can sign copies or use digital signatures. To be a witness or a certificate provider you need to be over 18.
If you choose more than one attorney can they witnesses each other’s signature but they cannot act as witnesses for you signing the Lasting Power of Attorney and they cannot be your certificate provider.
Once the forms are completed you will need to register them with the Office of the Public Guardian. The process involved in making Lasting Power of Attorney is not easy. Caroline Bielanska was our guest speaker at the session. Caroline is a consultant and a solicitor specialising in law related to mental capacity. Caroline wanted to come and tell us about a new information pack she has produced with Mencap to provide accessible information on making a Health and Welfare Lasting Power of Attorney. The EasyRead information is accompanied with a plain language guide that we will all find very useful.
- You can access the EasyRead Guide to Health & Welfare Lasting Power of Attorney on the Mencap Website here: https://www.mencaptrust.org.uk/guides-lasting-power-attorney.
Sophie O’Connell from Wolferstans Solicitors talked about Deputyship. You can watch her contribution here:
Deputyship can be helpful when there is no other way to support a person to manage their property and financial affairs. This means all support provided did not work and the person still cannot make a decision and there is no Lasting Power of Attorney in place. This will be a property and affairs deputy. There are also personal welfare deputies for health and welfare decisions, but these are less common.
A deputy is usually a family member or a close friend but sometimes it can be a professional such as a solicitor. The big difference between the Lasting Power of Attorney and Deputyship is that in a Lasting Power of Attorney we can choose who our attorney is, but it is the Court of Protection that will appoint the deputy. The Office of the Public Guardian has a list of Deputies that are called panel deputies, and these are usually professionals and the Court of Protection can ask them to act when no-one else is available or willing.
How do you become a deputy?
Sophie said that becoming a deputy requires careful consideration. It is a lot of work and takes a lot of time. Deputies are supervised by the Office of the Public Guardian and you have to provide them with an annual report. You need to apply to the Court of Protection using specific forms:
- COP1 – when you are applying for property and finances. https://www.gov.uk/government/publications/apply-to-make-decisions-on-someones-behalf-form-cop1
- COP1A – this is mandatory supporting information that you need to provide if you are applying to a property and affairs deputy https://www.gov.uk/government/publications/apply-to-make-decisions-on-someones-behalf-property-and-finance-form-cop1a
- COP1B – this is mandatory supporting information form if you are applying to be a personal welfare deputy https://www.gov.uk/government/publications/apply-to-make-decisions-on-someones-behalf-personal-welfare-form-cop1b
- COP3 – this is an assessment of capacity form. This requires you to submit an expert opinion about the person you are applying for mental capacity status as part of an application to make decisions for them. https://www.gov.uk/government/publications/make-a-report-on-someones-capacity-to-make-decisions-form-cop3
- COP4 – is a deputy’s declaration where they need to tell the court about their own personal and financial circumstances and how they would make decisions on behalf of the person they are applying for. https://www.gov.uk/government/publications/apply-to-become-someones-deputy-make-a-declaration-form-cop4
When a deputy is appointed, they can only make decisions that the person cannot make. The deputy must make decisions following the best interests process. Sophie talked through the best interests test and steps that need to be taken in our second CLARiTY session.
When it comes to Personal Welfare Deputies, the Court of Protection prefers health and welfare decisions to be made using the informal and collaborative process in the Mental Capacity Act rather than appointing a personal welfare deputy.
A deputy must be age 18 or over and if they are appointed for financial matters they must not be bankrupt.
Applying to be a deputy can be expensive. Fees can include:
- Application fee
- Court fee (if a hearing is needed)
- Security bond
- Supervision fees
Being a deputy is a responsible position. Any misuse of the person’s money risks prosecution against a deputy.
The details and deadlines for payments will be given to you by the Court or Office of the Public Guardian. If you are on a low income, depending on your financial situation, you may be able to get some help with your fees. More information on getting help with the associated costs of becoming a deputy can be found here: https://www.gov.uk/government/publications/deputy-fees-remission-or-exemption.
In 2019, the Court of Protection established an approach that determines whether a welfare deputy should be appointed. You can find information about this case in the summary prepared by the 39 Essex Street Chambers here: https://www.39essex.com/cop_cases/re-lawson-mottram-and-hopton-appointment-of-personal-welfare-deputies/.
If you have a Lasting Power of Attorney, you do not need to be appointed as a Deputy for the same decisions.
Advance Decision to Refuse Treatment
For EasyRead information on advance decisions and advance statements see https://www.cntw.nhs.uk/content/uploads/2018/01/Advance-decisions-easy-read.pdf
Everyone should be aware of the possibility to make an advance decision to refuse treatment.
An advance decision to refuse treatment is sometimes called a living will. Anyone age 18 or over can make an advance decision providing the have the mental capacity to do so. In an advance decision we can specify what treatment we refuse and in what circumstances for the future instances where we think we will not be able to make that decision.
It does not cost anything to make it. We can make it orally by telling someone about it like our family, social workers or health professionals. However, from a practical point of view it is a good idea to consider writing it down.
Advance decisions are not registered anywhere so it is important to think about the ways that people will know about our advance decisions. You could file it with your GP or even a local ambulance service.
It is important to note that if you make an advance decision to refuse treatment and then later choose to give someone a Lasting Power of Attorney to make decisions about medical treatment on your behalf, then this would make your advance decision invalid in law.
Advance decision to refuse life sustaining-treatment
If you wish to refuse a treatment in advance that might be used to keep us alive such as: ventilation (helps you breathe), cardiopulmonary resuscitation (CPR) or antibiotics that help your body fight an infection then there are extra things that you need to do for that decision to be legally binding.
If you decide to refuse life-sustaining treatment for the future the advance decision needs to be:
- Written down
- Signed by you
- Signed by a witness
- You must also include a clear statement that you refuse these treatments even if this means you will die as a result of it.
All advance decisions to refuse treatment are legally binding if they comply with the requirements set up in the Mental Capacity Act 2005. A relevant professional will need to check that it does comply with the Act if such circumstances for the decision apply.
The Compassion in Dying Charity offers some excellent help with making of an advance decision and even has forms you can use to make one: https://compassionindying.org.uk/choose-a-way-to-make-an-advance-decision-living-will/.
They also have a pack with detailed information about advance decisions: https://compassionindying.org.uk/library/advance-decision-living-will-pack-large-print/.
Unlike advance decisions, advance statements are not legally binding but allow us to make any wishes in relation to our future health and wellbeing known. We may want to express what our wishes and beliefs are, how we want to be cared for, any treatment preferences we have. Your advance statement may not always be followed but it will be taken into consideration during any best interests assessment related to decision-making about your health and wellbeing. This means that if you have an advance statement it will also be considered by anyone who is making decisions on our behalf such as Lasting Power of Attorneys or Deputies.
You can have both an advance statement and an advance decision to refuse treatment.
Here is a form from Compassion in Dying that you might find helpful if you are thinking about advance statements: https://compassionindying.org.uk/library/advance-statement/.
Here is a pack with more detailed information on advance statements from Compassion in Dying: https://compassionindying.org.uk/wp-content/uploads/2014/11/IN07-Advance-Statements.pdf.
Someone at the session also asked about Do Not Resuscitate notices (also known as DNRs). We talked about these in our second session. You can read about them in our Session 2 summary