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Keeping Mum: The Magic Formula for Mental Capacity Planning

Deputyship.  Attorney.  Advance Decision. Office of the Public Guardian.  

All very non-caring sounding terms in the context of, well, caring for an elderly parent or relative.  But judging by our inbox and post bag, important to get your head around – no pun intended – in case you need to look after Mum or Dad’s affairs because they no longer have the mental capacity to do so.  It sounds very grim, hopefully unlikely to happen, and there’s bound to be paperwork involved (there is), but here’s my 5 minute easyish read about planning for mental capacity issues.

LPA + AD + DNR = Peace of Mind 

1)Lasting Power of Attorney for health and welfare, and property and finance

2)Advance Decision

3)DNARCPR/DNAR/DNR – A Do Not Resuscitate order

With a bonus for an Advance Statement.  Everyone should have all three, whatever their financial circumstances.  

What’s it all about?

For Age Spacers its about parents or relatives being able to make their own decisions about their health and welfare, money and property.  Decisions generally taken for granted. Until it’s too late.   Worst case scenarios?  Frozen bank accounts and no access to funds; inability to sell a house should care need to be paid for; decisions around care options about a loved one being made by a (qualified) stranger in a court somewhere.

Why?

The primary purpose of The Mental Capacity Act of 2005 (England and Wales) is to empower people to make decisions for themselves wherever possible, to enable people to plan ahead for a time when they might lack the capacity, and if that should happen by protecting them with a flexible legal framework that includes their wishes in any decision-making.

There are 5 guiding principles to the Act with the core assumption being that everyone has the capacity to make their own decisions unless proven otherwise.  It’s worth a read to understand the context of why and what you should try and put in place……

Lasting Power of Attorney

If you can encourage your parents or relatives to do only one thing (apart from writing their will), this is the golden ball of Capacity Bingo.  It comes in 2 parts:  Lasting Power of Attorney (LPA) for health and well-being, and secondly an LPA for property and finance.  By appointing attorneys (family/friend) for either/both will mean that their best interests are protected and their wishes will be respected, should this be necessary.

From your parents perspective they may be concerned that you’re going to wrestle control of their health decisions and money from them and make decisions they don’t like.  In reality and if done correctly there are checks and balances to minimise this occurring.  And it might be a relief to know that should they go under a bus one rainy Wednesday that their wishes will be respected, and the family will infact be able to pay the mortgage and/or the milkman.

The Court of Protection

Established by the Mental Capacity Act, the Court of Protection helps people without capacity by making decisions for them about their money, property, health or welfare.  It can appoint someone else, known as a Deputy, to make these decisions on an ongoing basis.

If your parents are unable to put an LPA in place and lose their ability to make their own decisions, or if you are concerned about decisions made on behalf of someone, you can apply to the Court of Protection.  More forms to fill in and a doctor needs to confirm to the Court that there is an incapacity issue.

The Office of the Public Guardian

The Court of Protection and The Office of the Public Guardian (OPG) are part of the same process and their names are often somewhat unhelpfully used interchangeably.  Put simply, the Court makes the decisions, and the OPG takes care of the administration. The two work together but have separately defined roles.

Advance Decision

Also confusingly known as a Living Will, but not to be confused with an Advance Statement (hope you’re keeping up at the back…), is a legally binding set of instructions about what medical and healthcare treatment someone may want to refuse in the future. For example, it can be used if someone does not wish to be resuscitated if they develop certain medical conditions.  An Advance Decision can only be made by someone with the capacity at the time of making the decisions.  More paperwork to be lodged with the GP.  (different to an LPA for health and welfare because it is about what someone wants to REFUSE regarding treatment).

Advance Statementlegal blog

An Advance Statement is not legally binding and is more of an informal shopping list of things that someone might like to be considered about their life and lifestyle should they no longer be able to make their own decisions; it can include eg where and how they want to live, the clothes they wear, the food they like to eat, as well as medical interventions they may or may not wish for.

A Do Not Resuscitate Order

DNACPR stands for do not attempt cardiopulmonary resuscitation, aka a DNAR (do not attempt resuscitation) or DNR (do not resuscitate) but they all refer to the same thing, blimey.

DNACPR means if someone’s heart or breathing stops, the healthcare team will not try to revive them.  A DNACPR decision is made by the individual AND/OR by their doctor or healthcare team.  My dear Dad discussed and signed a DNR in hospital because it was agreed that his quality of life would most likely be severely compromised should CPR be necessary.   He was happy with his decision, as were we.

Rather than bingo, this does all sound like a lot of knitting.  But if you stick with the LPA + AD + DNR formula, it should hopefully be reasonably straightforward.  Fill the forms in correctly, and give copies to the right people.  It will make life easier should you find yourself caught betwixt and between with parents teetering on the edge and difficult decisions to be taken about every day life.  A good idea to get the (full) house in order.

Annabel James is the founder of AgeSpace.org. Her views are her own.

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