Mental Capacity Act

5. Planning ahead

The Act created a number of ways that someone can plan for their future in case they cannot make decisions for themselves. This is empowering as it means that someone can ensure that what they want to happen will still happen, even when they cannot decide or communicate these views. You don't have to use any of these if you don't want to.

Lasting powers of attorney

A Lasting power of attorney (LPA) enables someone to choose who they would wish to make decisions for them in future, if they become unable to make decisions themselves. The person or persons they appoint will then become their 'attorney'. To make an LPA, someone needs to complete a specific application form and this needs to be signed and witnessed by various people before being registered with the Office of the Public Guardian (see 'Other useful organisations' below). It must be registered before it can be used.

There are two different types of LPA, each relating to different decisions. Someone can have both types, but will need to complete both sets of forms. The two types are:

  • LPA for property and financial affairs - this gives the attorney or attorneys the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.
  • LPA for health and welfare - this gives the attorney or attorneys the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment or where they should live.

One of its most important uses is around making the decision to move to a care home or to a new care home.

You may also come across, or have made, an Enduring power of attorney (EPA). This was the previous system, before LPAs were introduced under the Mental Capacity Act. As long as they were made properly and signed before October 2007, they can still be registered and used. However, an EPA only enables the attorney to make decisions about a person's finances and property. It does not cover health and welfare decisions.

Advance decisions

The MCA also enables someone to create an advance decision to refuse treatment. This allows someone to state the types of treatment that they do not want, should they lack the mental capacity to decide this for themselves in the future. This may include refusal of life-sustaining treatment. Valid advance decisions are legally binding and must be followed by health professionals, provided the treatment and circumstances set out by the advance decision apply to the situation in question.

To be valid, an advance decision must be made in writing, and must be signed and witnessed. The document contains a several pieces of information, and it can help to have a conversation with the GP before making an advance decision, in order to ensure that it covers what the person wants it to.

Advance statements

Another way someone can plan for their future is by creating an advance statement. This is where they set out their wishes and preferences, including preferences about care, where they will live, what they like to eat or dislike, and even daytime activities and who they do and don't wish to visit them.

Advance statements can either be made in writing or verbally. They are not legally binding, but must be taken into account when decisions are made on behalf of a person who cannot make the decisions for themselves. They are a good way of enabling someone to express their wishes for the future, including both what they do and don't want.