Exciting changes brought into effect on 1 October 2007 may encourage more people to seek out the services of a solicitor. The Mental Capacity Act 2005 permits anyone over the age 18 who has capacity (referred to as “Donor”) to confer on another (or others) a Lasting Power of Attorney. The authority must comply with the requirements of Schedule 1 of the Act, which include setting out the authority in writing and registering the instrument with the Public Guardian. The authority must also comply with the principles set out in Section One (acting in the Donor’s best interests in a manner which is the least restrictive to the Donor’s freedom.) There are further conditions (Sections 10 and 11) which include a prohibition on bankrupts being appointed as Attorneys.

A precursor to the authority being exercised by the Attorney is the Donor’s loss of capacity to make a decision about his property and affairs, or personal welfare. The instrument may also specify other precursors, so as to narrow the exercise of authority to a specified set of circumstances. The provisions specifically cover an advance decision to refuse treatment. This decision must be in writing, specify the circumstances in which the treatment is refused, and endorsed that the refusal applies even if the Donor’s life is at risk. The document must also be signed by a witness.

The provisions do allow treatment to be given whilst a Court determines the validity of the advance refusal. This will be particularly interesting, as the authority is deemed invalid in the event that the Donor has verbally detracted from his written refusal or even behaved in a way inconsistent with the refusal. The possibility of family members lining up on either side of a particularly intense dispute as to exactly how the Donor behaved in his last months, what he said and how this is to be interpreted cannot be deemed fanciful. Donors (and Solicitors) will have to consider in advance ways to solve this problem.