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A country road in Autumn illustrating challenging the withdrawal of medical treatment and nutrition

When a decision is made to withdraw medical treatment and nutrition from a person who lacks capacity (known as “P”), it can be an overwhelming and frightening time for family and loved ones.

Those close to P often feel a responsibility to advocate on P’s behalf and to oppose the decision, especially if they feel the decision is not in keeping with P’s wishes.

But often friends and family are left feeling out of control and without a voice at such a critical time. The preparation of a Lasting Power of Attorney (LPA) for Health and Welfare can empower P’s loved ones to challenge such decisions.

The importance of Lasting Power of Attorney

By creating an LPA, the Donor (P), can elect who should make decisions on their behalf and the types of decision that can be made, in the event they lose Mental Capacity. With sufficient preparation, P can appoint a person or a group of people to make decisions regarding the medical care, including the withdrawal of medical treatment and nutrition, on their behalf, if they are ever unable to make the decision for themselves.

The LPA document can only be created by P if they have the required level of mental capacity, in accordance with the Mental Capacity Act (2005). The mental capacity threshold for creation of an LPA may differ from the threshold for creation of a Will or other decisions, so professional advice must always be sought if there is any question regarding the mental capacity of P.

Fluctuating mental capacity and decision making

It is crucial to understand that mental capacity is fluctuating and whilst P may not have mental capacity at some critical decision making moments, that is not to say P will never have the ability to make decisions again. It is therefore very important for medical professionals and the appointed Attorneys to take every step possible to obtain P’s wishes directly. It is only when all attempts to obtain a decision from P have failed as a result of a lack of mental capacity, that the power of the Attorney under the Lasting Power of Attorney is enabled.

If it is determined that P has the relevant mental capacity to create the LPA, P must consider very carefully who should be appointed, when they can act and to what extent they can exercise their powers. P should be encouraged to explore their wishes and feelings regarding as many scenarios as possible, to ensure the Attorneys are equipped with enough information to decision make and advocate on behalf of P, in the event that P is unable to articulate themselves as a result of a lack of mental capacity.

These conversations are of course not easy conversations, but detailed discussions around these challenging scenarios, best equips the Attorneys to make decisions on P’s behalf which fit as closely as possible to P’s own decision making and wishes and feelings.

LPAs and life sustaining treatment

At the point of creation of the LPA, P will be asked if the attorneys are granted power to make decisions about life sustaining treatment; this is an opt in or opt out section of the document and P must have opted in for the Attorneys to be permitted to make decisions regarding the withdrawal of medical treatment and nutrition.

Life Sustaining treatment can be a treatment as simple and straightforward as a course of antibiotics or as severe as chemotherapy, radiotherapy, amputation or blood transfusions for example.

Given the immense power the LPA confers from P to the Attorney, it is always best that these documents are created when P is free from time pressures, medical issues and other complications. Of course, life is not always that straightforward and it is more likely that P is considering preparation of an LPA in light of a health condition or another severe scenario.

In order to ensure; P’s wishes are communicated effectively to the Attorneys, the validity of the LPA, full consideration of the relevant issues and to protect the Attorneys, it is very important to seek professional advice when preparing this document. To ensure the Attorneys are fully appraised of P’s wishes, feelings, instructions and directions, a Letter of Wishes should be prepared to sit alongside the LPA, to offer a guide to the Attorneys.

How can Brain Injury Group help?

If you would like advice about bringing a brain injury claim, capacity, deputyships, managing the award of compensation or any other aspect of brain injury welfare, legal or financial advice, we have specialist brain injury solicitors and Court of Protection solicitors who can assist.

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About the author

Charlotte Pritchard is a Senior Associate Solicitor in the Lifestyle and Estate Planning Team at Brain Injury Group member firm Irwin Mitchell.

Irwin Mitchell are a national law firm whose solicitors work hard to make things easier for their clients and their family. Over the past 2 years they have helped clients recover more than £1 billion in compensation, but this is only part of the story, their solicitors also help clients access the rehabilitation, medical care and support needed to achieve the best recovery possible.

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