The Mental Capacity Act & Lasting Power of Attorney

///The Mental Capacity Act & Lasting Power of Attorney
The Mental Capacity Act & Lasting Power of Attorney 2018-01-30T16:37:05+00:00
  • The Mental Capacity Act defines the capacity to make decisions as:
    • The ability to understand information related to a decision
    • The ability to retain that information
    • The ability to use of weight that information as part of the decision-making process
    • The ability to communicate the decision (by any interpretable means)
  • The lasting power of attorney (LPA) empowers a person (the donor) to authorize another (the donee) to make decisions on his behalf when he no longer has capacity to do so. Such decisions may pertain to:
    • The donor’s personal welfare, or specified matters concerning the donor’s personal welfare
    • The donor’s property and affairs, or specified matters pertaining as such
  • The LPA may only be created if:
    • The donor:
      • Must be at least 21 years of age
      • Must possesses mental capacity at the time of creating the LPA
      • Must not have made an LPA under duress
    • The donee:
      • Must be at least 21 years of age
      • Must not be an undischarged bankrupt
      • Must have mental capacity
    • Multiple donees may be appointed
  • The donee may only make decisions under an LPA if the donor becomes mentally incapacitated
  • The donee may only make decisions to restrain the donee under an LPA if:
    • The donee reasonably believes it is necessary in order to prevent harm to the donor
    • The act is a proportionate response to the likelihood and seriousness of that harm
  • The donee may only make decisions on consenting or refusing treatment if the LPA contains express provisions to that effect
  • Regardless, an LPA does not allow the donee to make any decisions regarding life-sustaining treatment or treatment to prevent serious deterioration on the donor if the healthcare professional believes it is necessary to prevent a serious deterioration in the donor’s condition.
  • A decision made under an LPA cannot supersede and AMD
  • Safeguards against decisions made under an LPA:
    • Ill-treatment or willful neglect against a donor is a criminal offence
    • The donee has no authority under an LPA to consent to:
      • Marriage, divorce or annulment
      • Sexual sterilization
      • Change of gender
      • Abortion
      • Adopting or renouncing a religion
      • Consenting to any interaction of a sexual nature
      • Registering an AMD
      • Registering or withdrawing an objection to the Human Organ Transplant Act (HOTA)
      • Registering or withdrawing an decision made under the Medical Therapy, Education and Research Act (MTERA)
      • Making or revoking a nomination under the CPF Act
      • Making or executing a will
  • An LPA can be revoked if:
    • The donee loses mental capacity
    • The donor, if he still has mental capacity, decides to revoke the LPA
    • Either the donor or the donee dies

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