New law lets you make life and death decisions in advance

The law is changing to make it easier for people to decide while they’re still healthy what should happen if they become incapable of making decisions for themselves over their money, property and even whether they should be kept alive if they suffer an debilitating illness. Vicky Newman of Andersons solicitors in Nottingham explains how the new Mental Capacity Act gives us more control over our futures. Many people dread the prospect of becoming so ill that they can’t make decisions for themselves and become a burden on their families. No one wants to leave their children with the agonising dilemma of whether or not a life support machine should be switched off, and very few relish the prospect of being kept alive artificially when all quality of life is gone. In the past, people wanting to say what should happen to them if they become too ill to decide for themselves have been able to make advance treatment directives – known as living wills – but they have not been considered legally binding. Now that is about to change. The Mental Capacity Act comes into force in April bringing with it a raft of new measures. It will enable people to make advance decisions which should be honoured as long as they are in writing, signed and witnessed. If the decision applies to the refusal of life-saving treatment then there must also be a statement that it stands even if the person’s life is at risk. The Act also extends the concept of giving someone powers of attorney to make decisions on your behalf should you lose the capacity to do so yourself. At the moment, it’s possible to grant someone what’s known as enduring power of attorney but this only entitles them to make decisions about such things as financial matters, property and business affairs. This system is being replaced by lasting power of attorney which can be extended to include welfare matters such as health care. Any such decisions have to be made in your best interest and meet a checklist of criteria set out in the Act. Although the main part of the Act comes into effect in April, lasting power of attorney won’t be available until October. If a person becomes incapacitated without having granted anyone power of attorney and they have no family to assist them then they could be provided with an independent mental capacity advocate if there is an important decision to be made about their health care or accommodation. The advocate will try to represent the person’s wishes as much as that is possible and try to reflect their known feelings, values and beliefs. The advocate can challenge a decision affecting the person’s welfare, such as doctors deciding what medical treatment should be given. There will also be a new Court of Protection. This will be used to settle any disputes, whether to do with finance or welfare, that might arise over a person who has lost mental capacity. The Act may invite people to consider some uncomfortable choices, but it does present us with an opportunity to take control of our futures in a way that has not been possible before. Vicky Newman is an expert in Wills and Probate at Andersons Solicitors she can be contacted on 0115 988 6727 or email Vicky Newman Andersons Solicitors is a five-partner, Nottingham-based law firm offering a variety of legal service to businesses and individuals. Services include:

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