The Magic Formula for Mental Capacity Planning

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

These are all very non-caring sounding terms in the context of caring for an elderly parent or relative.  But they are important to get your head around – no pun intended – in case you need to step in and look after your parents affairs because they no longer have the mental capacity to do so.  

LPA + AD + DNR = Peace of Mind

LPA – Lasting Power of Attorney for health and welfare, and property and finance

D – Advance Decision

DNARCPR/DNAR/DNR – A Do Not Resuscitate order

The three together are extremely useful for family members to interpret wishes and act on someone’s behalf. 

Respecting wishes and making decisions 

This is about enabling a trusted individual to make decisions about health, welfare, money and property on behalf of the person they have been entrusted by. Decisions we  make every day, until we no longer can. The implications of not putting these in place could include frozen bank accounts and no access to funds for a spouse or partner; inability to sell a house should care need to be paid for; decisions about care for a loved one being made by a stranger in a court.

Why?

There are 5 guiding principles to the Mental Capacity Act 2005 with the core assumption being that everyone has the capacity to make their own decisions unless proven otherwise.  This forms the basis on which we should all make provisions for what might happen.

Lasting Power of Attorney

If you can encourage your parents or relatives to do only one thing (apart from writing their will), then it would be to establish a lasting power of attorney.  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.

 The Court of Protection

Established under 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, 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 Statement

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.  An example of this might be someone who discusses and signs a DNR whilst in hospital because it was agreed that his quality of life would most likely be severely compromised should CPR be necessary.   

LPA + AD +DNR = the magic formula

These three important sets of documents should give elderly parents and relatives confidence that their wishes will be respected and put into place should they no longer be able to themselves.  Separately and together they give people control over their futures, and peace of mind to families. 

There is paperwork to complete, some of it quite complicated in terms of individual steps and the order in which to do things.  So, worth taking the time over them, particularly the LPA.