Advance decisions and general statements (‘living wills’)
‘Living will’ is non-technical legal term used to refer to different things. It is sometimes used to refer to a general statement of a person’s wishes should they lose mental capacity in the future or else to an ‘advance decision/directive’ which is more official.
Both ‘general statements’ and ‘advance decisions’ are ways of expressing in advance wishes about medical treatment for a time in the future when someone may not have the mental capacity to refuse or consent for him or herself. However, both of these options do have limitations.
- A general written statement is not legally binding and so, although health professionals have to take it into account and it could be used as evidence of your wishes, it could be overridden and this would almost certainly not be open to challenge.
- An ‘advance decision’ is enforceable; provided it is valid and applies to the proposed treatment, it has the same effect as a refusal made by a person with full capacity. However, an advance decision is used to state your wishes in advance and it is therefore somewhat inflexible as it does not allow you to nominate someone else to decide about treatment or care on your behalf. In addition, it only provides for a person to refuse treatment,and it does not confer any positive right to receive a specific treatment.
Funding: The usual cost for an advance directive is £350 plus VAT.
Lasting Powers of Attorney (‘LPA’)
An LPA grants authority to the attorney to manage your affairs (i.e. make decisions) on your behalf. There are two types of LPA – one which deals with financial and property matters and another which deals with personal welfare issues (such as where you live, what care you have and what happens to you if you are unwell). A personal welfare LPA can include issues of medical treatment and/or daily living decisions.
Your attorney can only make personal welfare decisions on your behalf once the LPA has been registered with the Office of the Public Guardian (OPG), and when it is established that you lack mental capacity to make the decision for yourself at that particular time. This is different from a property and financial affairs LPA that can be used whilst you still have capacity.
In order to be effective the LPA must be registered with the Office of the Public Guardian. Either you can register the LPA whilst you still have capacity or your attorney can apply to register the LPA at any time (e.g. when they think you are losing capacity to make decisions for yourself).
The cost of a Lasting Powers of Attorney is £400 plus VAT (Property & Affairs) and £500 plus VAT (Welfare) and £750 (for both).
Where someone has already lost capacity, the Court of Protection can appoint a deputy to make decisions on behalf of that person. A deputy can be appointed in respect of someone’s property & affairs or health & welfare decisions, although it is much less common for the court to appoint a deputy in respect of health & welfare and an application can only be made if there are live welfare issues.
Funding: £1500 plus VAT.
How do I become a deputy?
We can make an application to the Court of Protection for you to become a deputy for your friend or relative. Any application will need to be supported by a capacity assessment by a medical professional. Particularly in respect of applications for welfare deputies, the court will require clear evidence that the appointment of a welfare deputy is likely to bring substantive benefit.
Attorney and deputy disputes
The firm has experience of acting for attorneys and deputies facing allegations that they have acted outside the scope of their authority or not acted in the best interests of the incapacitated person (‘P’).
In the case of LB Haringey v CM  EWCOP B23, the firm acted for a Property and Affairs Attorney facing allegations of improper conduct by a local authority. In the judgment, the court for the first time referred to article 12 of the Convention on the Rights of Persons with Disabilities (‘CRPD’).
Legal Help advice may be available for those who meet the eligibility criteria. Private rates between £85 and £170 an hour/ fixed fees on request.
Applications under the Inherent Jurisdiction
The firm is able to offer advice and representation in cases where the court exercises so-called ‘inherent jurisdiction’ to investigate where concerns are raised (normally by a local authority) in respect of a vulnerable adult who, whilst not intrinsically incapacitated, is believed for some reason deprived of the capacity to make relevant decisions, usually as a result of external influence or control.
The firm acted in one of the landmark cases under the inherent jurisdiction (LBL v RYJ and VJ)  EWHC 2665 (COP) in which Macur J decided that RYJ had capacity to make decisions as to her day-to-day life and made it clear that the inherent jurisdiction should not be used to make decisions on behalf of vulnerable capacitated adults.
Funding: Legal Aid is available subject to eligibility. Private client rates between £85 and £170 an hour/ fixed fees available.