Whilst no one likes to contemplate what will happen to them if they lose their mental capacity, there is a process which can be put in place to ensure that they and their interests will be well looked after. This is a Lasting Power of Attorney.
What Is A Lasting Power Of Attorney?
An LPA allows a donor to nominate one or more attorneys (nominated friends or family) to make decisions should they lose the mental capacity to do so themselves. Unlike an Enduring Power of Attorney (EPA), a Lasting Power of Attorney will need to be registered with the Court of Protection before it may be used by the attorney(s).
A person can make two types of Lasting Power of Attorneys, one dealing with financial matters (as do EPAs) and one concerning personal welfare. A Personal Welfare Lasting Power of Attorney (PWLPA) can be used to set up an ‘advance directive’ regarding giving or refusing medical treatment in circumstances where the donor has lost the capacity to make such decisions themselves. The PWLPA is legally binding if it is valid and applicable to the treatment proposed. This new power has caused anxiety for some people, who worry that making a PWLPA might allow a relative to ‘pull the plug’ when they themselves might not wish that to happen.
No matter what the PWLPA states, the final decision regarding any treatment given will rest with the responsible clinician. The PWLPA cannot compel treatment to be given which is contrary to medical advice.
There are considerable legal safeguards built into advance directives, which in any event will only apply when the person creating the directive no longer has mental capacity. Where there is genuine disagreement about the existence, validity or applicability of an advance decision, those providing care or treatment will be able to apply for a ruling from the Court of Protection.
Enduring Powers of Attorney
The Mental Capacity Act 2005 meant that from 1 October 2007 the Enduring Power of Attorney (EPA) was replaced with the Lasting Power of Attorney (LPA). EPAs made prior to 1 October will continue to be valid.
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