LPA: Health & Welfare | Nigel Shepherd, Barrister-at-Law

Mental capacity

You must have “mental capacity” when you make the LPA. This must be certified by an independent person.

Other ways to make your wishes clear

An advance decision — sometimes called a “living will” or “advance directive” — is a separate, legally binding document in which you write down which specific treatments you do not want, in case you later cannot decide or make your wishes known.

If you have made an advance decision that your doctors or attorneys should take into account, refer to it in section 7 of the LPA form.
Information about advance decisions is available from the NHS.
If you give your attorneys power to decide about life-sustaining treatment, and you have also made an advance decision, your LPA might override that advance decision.
You can also make your views on treatment and care known in statements of preference, and in care plans.

There is more about life-sustaining treatment, advance decisions, and how health professionals must respond to your written wishes, in chapter 9 of the Mental Capacity Act Code of Practice.

Section 5 — life-sustaining treatment. This is one of the most important choices in the form. You must choose whether your attorneys can give or refuse consent to life-sustaining treatment on your behalf.

Life-sustaining treatment means care, surgery, medicine or other help from doctors needed to keep you alive — for example, a serious operation such as a heart bypass or organ transplant, cancer treatment, or artificial nutrition or hydration. Whether a particular treatment counts as “life-sustaining” depends on the situation: if you had pneumonia, even a simple course of antibiotics could be life-sustaining. Decisions like this can arise unexpectedly — a routine operation that does not go as planned, a road traffic accident.

Option A

You give your attorneys authority to give or refuse consent to life-sustaining treatment on your behalf.

Option B

You do not give your attorneys that authority — the doctors decide instead. Choose this if you want doctors to decide in case you cannot. They must then assess what is in your best interests; take into account, where possible, the views of your attorneys and others involved in your welfare; and take into account what you have said or written about life-sustaining treatment, including any guidance in your LPA.

Section 7 — preferences and instructions (optional)

You can use section 7 to tell your attorneys more about your preferences, or to give them instructions they must follow. Most people leave this page blank — simply talking to your attorneys is often enough for them to understand how you want decisions made.

Preferences — attorneys must keep these in mind, but need not follow them

“If I were in the last days of a terminal illness, I would only want treatments to make me comfortable. I would not want treatments to prolong my life or that meant I couldn’t die at home.”
“I prefer to live within five miles of my sister.”
“I’d like to be prescribed generic medicines where they are available.”
“I would like to take exercise at least three times a week whenever I am physically able to do so. Whether or not I am mobile, I would like to spend time outdoors at least once a day.”
“I’d like my pets to live with me for as long as possible — if I go into a care home, I’d like to take them with me.”
“I’d like to have regular haircuts, manicures, and pedicures.”

Instructions — attorneys must follow these exactly

“My attorneys must not agree to life-sustaining treatment if I am in a persistent vegetative state.”
“My attorneys must not decide I am to move into residential care unless, in my doctor’s opinion, I can no longer live independently.”
“My attorneys must not consent to any medical treatment involving blood products, as this is against my religion.”
“My attorneys must ensure I am given only vegetarian food.”

You must be careful not to write anything that contradicts what you have said elsewhere in your LPA, or that requires your attorneys to break the law — if you do, it could make your LPA unworkable. If you want to write instructions but are uncertain, take legal advice. See also LPA: Common Mistakes.

Some material on this page is adapted from the Office of the Public Guardian’s official guidance.

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