1. Advance Decisions to Refuse Treatment
People may make a decision in advance to refuse treatment if they should lose capacity in the future. It is made clear in the MCA that an advance decision will have no application to any treatment which a doctor considers necessary to sustain life unless: the decision is made in writing and it is signed by the person and witnessed. In addition, there must be an express statement that the decision stands “even if life is at risk”.
2. Lasting Powers of Attorney, Court Appointed Deputy, Court of Protection and Office of the Public Guardian
Any person who has the capacity to understand the nature and implications of doing so may appoint another person(s) to administer their affairs on their behalf either generally or limited to specific issues. This power may be removed or limited by the donor at any time.
A Lasting Power of Attorney (LPA) allows an adult to appoint an attorney to act on their behalf if they should lose mental capacity in the future and permits the person to instruct an attorney to make decisions about their property and affairs as well as health and welfare decisions.
A Court Appointed Deputy is appointed by the Court of Protection. The Court of Protection (CoP) has the same powers, rights, privileges and authority as the High Court and has jurisdiction in relation to welfare decisions as well as management of property and affairs. The Court can make declarations as to whether a person has or lacks capacity, and the lawfulness of any acts or omissions done or proposed to be done in relation to that person. Depending on the terms of their appointment, Court Appointed Deputies can take decisions on welfare, healthcare and financial matters as authorised by the CoP but they are not able to refuse consent to life sustaining treatment.
It is important to note that any decisions made by the CoP can be challenged; for example where it is believed that a deputy is not acting in the best interests of the person they are representing in relation to any concerns which relate to safeguarding concerns.
The Office of the Public Guardian (OPG) is the registering authority for LPA’s and deputies. It supervises deputies appointed by the Court and provides information to help the Court make decisions. The OPG also works with other agencies, for example the police and adult social care, to respond to any concerns raised about the way in which an attorney or deputy is operating.
3. Abuse by an Attorney or Deputy
If someone has concerns about the actions of an attorney acting under a registered lasting power of attorney (LPA), or a deputy appointed by the Court of Protection, they should contact the Office of the Public Guardian (OPG). The OPG can investigate the actions of a Deputy or Attorney and can also refer concerns to other relevant agencies. When it makes a referral, the OPG will make sure that the relevant agency keeps it informed of the action it takes. The OPG can also make an application to the Court of Protection if it needs to take possible action against the attorney or deputy.
Whilst the OPG primarily investigates financial abuse, it is important to note that that it also has a duty to investigate concerns about the actions of an attorney acting under a health and welfare Lasting Power of Attorney or a personal welfare deputy. The OPG can investigate concerns about an attorney acting under a registered LPA, regardless of the adult’s capacity to make decisions.