It is a fundamental human right to make our own decisions about the care and treatment we receive, unless… we are unable to do so.
However hard it is to imagine now, there may come a time when you lack capacity to make all of your own decisions. Medical conditions, for example stroke, sudden brain injury or a progressive disease of the brain like dementia, can all affect our mental capacity.
This could happen to any of us and if it did, we would want to feel confident that our interests were protected.
Fortunately, the law* does offer this protection. It sets out who has legal authority to make decisions on our behalf, when they can do this and how. The law enables us to plan for a time in the future when we may lack capacity to make all of our own decisions. We can make sure our wishes are followed by granting a power of attorney and/ or making an advance decision to refuse medical treatment.
Powers of attorney
You can choose to plan ahead by giving another trusted person authority to make decisions on your behalf in the future. A power of attorney is a legal document that grants this power. You can appoint one or more attorneys providing you are over 18 years of age and have the mental capacity to understand what you are doing.
There are 2 types of power of attorney:
Health and welfare
Property and financial affairs
You can choose to grant a power of attorney for either health and welfare or property and financial affairs, or both.
Health and welfare power of attorney
A health and welfare attorney can make decisions about your care and treatment if you lose capacity to do so. This might include for example:
Giving consent to care plans about your routine day to day care (what to wear, eat, what time to get up, etc)
Deciding where you are going to live
Consenting to medical care and in some cases, life sustaining treatment
Property and affairs power of attorney
A property and affairs attorney can manage your bank or building society account, pay your bills, collect benefits or a pension, sell your home etc..You can grant your attorney for property and affairs power to act whilst you still have capacity to make your own financial decisions.
What you need to do
The first step is to choose the right person(s) to act as your attorney or attorneys. They must be over 18 years of age and willing and able to act on your behalf. If you are appointing more than one attorney decide whether you want them to make decisions separately or together.
The second step is to fill in the standard forms. You do not have to ask a lawyer to do this for you. You can find the forms on the government website
The extent of the attorney’s powers will depend upon the legal authority that you choose to grant them. Consider this carefully, it may be a good idea to talk it over with a close friend.
The third step is to register the power of attorney. For your attorney to be able to act on your behalf they must be registered with the Office of the Public Guardian. You can do this now or when it is needed. The form must be sent to the Office of the Public Guardian with the fee (£110).
You can contact the office of the Public Guardian for more information at
Enduring Power of Attorney
You may have already granted an Enduring Power of Attorney (under the Enduring Power of Attorney’s Act 1985 or The Enduring Powers of Attorney (Northern Ireland) Order 1987). An Enduring Power of Attorney only allows the attorney to make decisions about property and financial affairs. In England and Wales you can no longer make an Enduring Power of Attorney. Instead you can create a Lasting Power of Attorney (under the Mental Capacity Act 2005).
Advanced decisions to refuse treatment
Advance decisions to refuse medical treatment are another way you can plan for a future time when you may no longer have capacity to consent to medical treatment. These are sometimes called living wills or advance directives.
Advanced decisions allow people to state ahead of time whether they would want to refuse a particular treatment. For example, you could make an advance decision to refuse blood products if you were admitted to hospital in an emergency and were unable to tell the medical staff that you did not want this treatment. Special rules apply if you are suffering from a life threatening condition.
Make sure your doctor and family are aware if you do make any advance decisions to refuse medical treatment. Doctors and other healthcare professionals are required by law to follow your advance decisions if they know about them. In England and Wales these are covered by the Mental Capacity Act 2005. In Scotland and Northern Ireland they are covered by common law.
People cannot make advanced decisions regarding the treatment they would like, but they can make advance statements about their preferences and these will be taken into account.
The Macmillan website has useful information about advance decisions to refuse medical treatment.
