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Mental Capacity Act 2005: a practice-based course Supporting older people in care homes and the community as they would like. Session Three Planning in advance. Revision!. 5 key principles 2 stage test of capacity 4 stage assessment of capacity

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Session three planning in advance
Mental Capacity Act 2005: a practice-based courseSupporting older people in care homes and the community as they would like.

Session Three

Planning in advance


5 key principles

2 stage test of capacity

4 stage assessment of capacity

5 stage summary of ‘best interests’ criteria.

Dignity in advance care planning
Dignity in Advance Care Planning

…can help promote for residents


  • You have had these discussions in advance with the resident

  • You will know howto care for them as they would want

  • All care home staff can know their wishes – they’ve been recorded

A sense of being in control

A feeling of confidence, knowing you will try to avoid undignified situations

Introduction to advance care planning
Introduction to Advance Care Planning

Key terms

Advance Care Planning

Advance Statements

Advance Decisions

‘Living Will’

Lasting Power of Attorney

Advance care planning acp
Advance Care Planning (ACP)

Taken from ‘Advance Care Planning: A guide for Health and Social Care Staff’, NHS End of Life Care Programme, February 2007


“ACP is a process of discussion between an individual and their care providers irrespective of discipline. If the individual wishes, their family and friends may be included.

With the individual’s agreement, this discussion should be documented, regularly reviewed, and communicated to key persons involved in their care….”

Advance statements
Advance Statements

Statement of wishes and preferences

No legal status, not legally binding, but guidance and preferences

If person lacks capacity to make a decision about health and welfare, then an advance statement will be taken into account when decisions are being made.

Helps to inform ‘best interests’ for a person.

An example is the Preferred Priorities of Care form

Advance decisions to refuse treatment 1
Advance Decisions to Refuse Treatment -1

Relates to an advance decision to refuse treatment

Legally binding, if valid and applicable

Must be in writing if it relates to refusal of life- sustaining treatment, signed & witnessed

Must state clearly that if it still applies even if life is at risk

Person must have mental capacity at the time of writing

Advance decisions to refuse treatment 2
Advance Decisions to Refuse Treatment -2

Validity and Applicability

Must relate to treatment being considered

Must relate to exact circumstances

Questions to consider

Has the person done anything that clearly goes against their advance decision?

Has the person withdrawn their decision?

Has an LPA been set up after advance decision?

Would the person have changed their decision if they had known more about current circumstances?

Taken from Mental Capacity Act Code of Practice

Living will and advance directive
‘Living Will’ and ‘Advance Directive’

Old fashioned terms

Not clear as to meaning

Usually accepted to be an advance refusal of treatment, but not necessarily so

Lasting power of attorney lpa
Lasting Power of Attorney (LPA)

  • What does an LPA look like?

Is simply a legal entity giving certain powers to another person

  • Newly established by the Mental Capacity Act 2005

    LPA only operates when a person has LOST capacity

  • Unlike existing Enduring Power of Attorney EPA’s

    Differs from an Enduring Power of Attorney

  • LPA replaces EPA, though existing EPAs will still be valid

    Must be registered with the Office of the Public Guardian (OPG)

  • stamped and authenticated on each page

  • all of the forms are on the web

Lasting power of attorney lpa1
Lasting Power of Attorney (LPA)

Now 2 types of LPA

  • Health & Personal Welfare (Personal Welfare Lasting Power of Attorney - PWLPA)

  • Property and Affairs

  • There’s only one type of EPA (Enduring Power of Attorney) for personal affairs

    PWLPA can make decisions about health and welfare

  • ONLY if specified

    PWLPA can make decisions about life-sustaining treatments

  • ONLY if specified

    Can be complicated to set up – but all documents on the web

Personal welfare lasting power of attorney pwlpa
Personal Welfare Lasting Power of Attorney (PWLPA)

Group Work

What do you think are the advantages of PWLPAs?

What do you think are the potential problems?

What actions do you need to take if a visitor or relative says they have a PWLPA for a resident?

Safeguards built into lpas
Safeguards built into LPAs

Named persons

  • Up to 5people need to be nominated who will be notified when an LPA created

  • All nominated persons have to agree with appointment of Attorney

    If no “Named persons”, then donor must appoint 2 Certificate Providers

  • Named persons confirm to OPG that Attorney has been appointed legitimately

  • 1 must know the person setting up the LPA

  • 1 skills based – a healthcare professional, solicitor but not care home owner or staff

  • Any of these Named Persons can raise concerns if in any doubt about Attorney

    Attorneys must act in best interests

  • Can be liable to a new offence of neglect/abuse under MCA

    Person setting up the LPA can limit the power of the Attorney

  • It will very rare for a “blanket” LPA to be created – nearly always specific

    Objections can be raised by anyone with a legitimate interest in the LPA

  • With the Office of Public Guardian, who will investigate

Lasting power of attorney lpa2
Lasting Power of Attorney (LPA)


Replaces Enduring Powers of Attorney

  • existing EPA’s still valid even if not registered

    LPAs now cover Health & Personal Welfare

  • not just property and financial affairs

    Can ONLY be used if the LPA Donor has LOST capacity

    Clear to all who can decide on person’s behalf

  • someone legally appointed by person to speak on their behalf

  • they become that person

  • Clarifies the role of ‘next of kin’ – can be consulted, but cannot make decision, unless has a PWLPA.

    Significant and valuable safeguards built in to LPAs

  • If in any doubt contact OPG and raise concerns

    CQC can ask you if you are aware of any LPAs with your residents or clients in the community.


The process of planning in advance can enable people to think about, discuss and have their wishes recorded

A written advance care plan is only to be referred to if/when a person lacks the capacity to make a decision about their care and treatment

A person who has a Lasting Power of Attorney for health & welfare can make decisions for a person if they are unable to.