Mental Health Awareness week, 8-14 May 2017, is a timely reminder of the issues surrounding mental health. Shelly Wainwright, senior associate solicitor in the wills and probate team at Ansons Solicitors in Staffordshire, looks at what happens if an individual lacks the mental capacity to make their own decisions about medical treatment.

“If an individual has not made either a health and welfare lasting power of attorney (LPA) or an advance decision then the medical profession have a duty of care to treat the individual to sustain their life, even if this is not what they may have wanted,” says Shelly.

To make sure your wishes are followed, you can either make an LPA or an advance decision, or both. However, the powers of an LPA cannot conflict with the advance decision instructions.

Lasting power of attorney

A health and welfare LPA allows the donor to appoint people they trust to make decisions that are in their best interests about all health and welfare issues but only if the donor does not have the mental capacity to make their own decisions. This can be an important power but can give the donor confidence that their wishes will be adhered to if they are unable to make their own decisions It is important that legal advice is taken about making these documents.

Advance decision

An advance decision is a decision to refuse the giving or continuing of specific medical treatment at a time in the future if the decision maker has lost mental capacity to consent to it. The advance decision has the same effect as if the person had capacity and was refusing treatment themselves.

The advance decision can be verbal, but it is much better for it to be in writing. The decision maker can specify particular circumstances in which a specified treatment is to be refused and also if life sustaining treatment is to be refused. The decision maker can also make a positive expression of preference to a particular treatment.

An advance decision cannot:

require a healthcare professional to provide a particular medical treatment;

• refuse actions that are needed to keep the decision maker comfortable, such as the provision of essential care; or
• request to authorise illegal acts such as assisted suicide.

Mental health is an issue for everyone, not just the elderly. Putting in place the correct documents that accurately reflect your wishes means that you do not have to worry about in the future if your mental capacity diminishes and you cannot make your own health and welfare decisions.

For more advice about a lasting power of attorney or advance decisions, contact Shelly Wainwright on 01543 267984 or email swainwright@ansons.law. Ansons Solicitors has offices in Cannock and Lichfield, and Sutton Coldfield by appointment only.