Mental incapacity, specifically dementia, is a sad fact of life for many people.
Wherever you find yourself on the spectrum of life, I strongly recommend making a ‘Lasting Power of Attorney’ (LPA), which comes in two parts:
• Property and Financial Affairs; and
• Health and Welfare.
You are appointing one or more people close to you who you completely trust to take over responsibility for making important decisions on your behalf if needed. You can appoint one individual to act as your Attorney or more than one. If more than one, they can be appointed either ‘jointly’ or ‘severally’. ‘Jointly’ requires that they must make a unanimous decision on acting. If ‘severally’, then any one of them can act.
Otherwise, loss of mental capacity will typically lead to a much more complex and potentially long-drawn-out process, whereby the individual’s affairs are put into the hands of the Court of Protection which will appoint a ‘deputy’ to make decisions on your behalf (and you really don’t want to go there).
To make your LPA, and to register it, you should consult a solicitor, though it is possible to do it yourself.
Once made, the LPA is registered with the Office of the Public Guardian which stamps it with ‘VALIDATED – OPG’. The OPG charges a fee of £82 per person per LPA. The registration process takes up to 20 weeks, assuming that the LPA is in correct format. The LPA can then simply be filed away until needed if ever. At that point (and it would be checked with your doctor), your Attorney(s) can take over responsibility for your affairs.
You should authorise your Health and Welfare Attorney to do their best to ensure that your wishes for medical treatment are honoured. A ‘Living Will’ is a witnessed statement from you, which the Attorney would give to the hospital staff along with the LPA. The NHS call it an ‘advance decision’. So, for example, you might not want to be kept alive by a ventilator (if you cannot breathe by yourself) or by resuscitation if your heart stops beating or by antibiotics. If you wish to refuse such treatment in circumstances where you might die, you
should say so.
This is a very complex and sensitive area. You may wish to discuss the content of an advance decision with a suitably qualified doctor or nurse and/or someone who knows you well.
By contrast, an ‘advance statement’ is a more informal guide stating how you would like to be looked after if you can no longer communicate properly. An advance statement is not legally binding, as is an advance decision.
As another less formal alternative to an advance decision, you could consider the ReSPECT Form (Version 3) introduced in 2016 by the Resuscitation Council UK. ReSPECT stands for Recommended Summary Plan for Emergency Care and Treatment process, to formalise conversations between the patient, their family and healthcare professionals about care in a future emergency.