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28 Dealing with Someone Else's Affairs

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1 Introduction

2. What is 'mental capacity'?

3. When can I deal with someone's financial affairs?

4. How can I help someone to collect or spend their benefits and pensions?

5. When can I have access to someone's bank accounts?

6. What must an attorney do?

7. What if there is no enduring power of attorney?

8. What must a 'receiver' do?

9. What if a person recovers their mental capacity?

10. How can I make sure a disabled relative is cared for after I die?

11. Can I deal with decisions about someone's healthcare?

If the person you care for needs medical treatment, only they can agree to that treatment. No-one - not even husbands or wives, partners, close relatives, professional carers or independent advocates - can legally give or withhold consent to medical treatment on behalf of another adult.

If you have been appointed as attorney or receiver, you have no power to make healthcare or welfare decisions. However, if you are closely involved with the person's affairs, healthcare professionals may consult you when making decisions about their medical treatment and what would be in their best interests (unless the person had made it known that they wouldn't want you to be involved).

Can care and treatment be given without consent?
Doctors, nurses and other healthcare professionals can and should provide treatment without consent for people who are unable to agree to it if:

  • they consider it to be necessary to treat the person's illness or condition; and
  • it is in the person's best interests.

They should always consult people close to the person to agree the best course of action or treatment, unless the person has made clear in the past that they would not want a particular person involved.

You should never be asked to sign a consent form on behalf of the person you care for, but you may be asked to sign a form to say that the doctors or other healthcare professionals have discussed the person's best interests with you.

Can decisions about healthcare be made in advance?
While people still have mental capacity, they can state their wishes about the forms of medical treatment that they would or would not want, if they should later lose the capacity to decide for themselves. This is called an 'advance statement'.  In the case of someone's wishes to refuse future medical treatment, even life-sustaining treatment, it is sometimes called an 'advance directive' or a 'living will'.

You should try to find out whether the person you care for has made any such plans. They may have already discussed these plans with you or other people close to them while they still had the capacity to make such decisions. If the person has made an   advance statement, you should tell the doctor, nurse or other healthcare professional involved and give a copy of any signed document to them.

If someone has made an advance statement but later wants to change their mind, they can simply destroy any written document and tell everyone who knew about it that it is no longer valid. As long as a person has the mental capacity, they can make a new statement at any time.

What can advance statements include?
There are various things you can include in an advance statement, such as:

  • your individual wishes and treatment preferences;
  • general beliefs and aspects of life that you value;
  • naming a person who should be consulted when a healthcare decision needs to be made;
  • asking to receive certain types of treatment in certain circumstances;
  • a clear instruction refusing some or all medical treatments in certain circumstances; and
  • stating the point when, if your condition deteriorates, you would not want life-sustaining treatment to be given.

Advance statements can be a combination of some or all of the above.

No form of advance statement can make a doctor do something unlawful, including action that is meant to end someone's life, such as assisting suicide.

Are advance statements legally binding?
Advance statements are legally binding only in certain circumstances. An advance directive refusing treatment is legally binding, even if carers and relatives or healthcare professionals disagree with it, as long as:

  • the refusal was made while the person still had mental capacity and they understood what their decision would mean;
  • the refusal of treatment is clear and applies in the circumstances that have arisen;
  • the advance directive was made without undue pressure from other people; and
  • there is no reason to believe that the person has changed their mind.

However, an advance directive refusing treatment for mental disorder can be overruled if the person is admitted to hospital for treatment under the Mental Health Act 1983.

Advance directives are relevant only when the person has lost mental capacity. If you make a decision after you have made an advanced directive, this overrides the advance directive, as long as you made the decision when you were able to do so.

Any advance statements asking for (rather than refusing) specific treatments or expressing wishes or preferences should be respected and taken into account. They can help healthcare professionals know how a person would like to be treated and what form of treatment may be in their best interests. However, professionals may not have to follow with those wishes if, in their professional judgement, the treatment would be pointless, unnecessary for the person's health, or inappropriate.

Doctors must give special consideration to advance statements that ask for life-sustaining treatment, such as artificial nutrition and hydration (ANH). Wherever possible, doctors should take all steps to prolong someone's life, but, in exceptional cases or if someone is close to death, providing ANH may cause them great suffering and loss of dignity. Doctors must take into account of a patient's wishes in their advance statement but weigh these carefully against all other relevant factors in deciding whether it is in the best interests of the patient to provide or continue ANH.  Doctors sometimes must apply to the High Court if they want to withhold or withdraw life-sustaining treatment where there is doubt about the patient's best interests. 

Whatever the situation, professionals who ignore or override an advance statement must do so carefully and must be able to give clear reasons to justify their decision.

What if there is a disagreement about someone's capacity or best interests?

Healthcare or other professionals and people close to the person can usually agree on whether someone has the capacity to make a particular decision or what would be in their best interests. However, if this proves impossible, anyone involved can ask the High Court to decide what is in the person's best interests.

The courts have decided that some decisions about medical treatment are so serious that they must give a ruling in each case. These are:

  • withholding or withdrawal of life-sustaining treatment from patients in a permanent vegetative state (PVS); and
  • sterilising someone who does not have the capacity to agree to it, unless it must be done for their health.

The court can be asked to make other healthcare decisions, such as those involving ethical dilemmas or untested treatments (for example, new treatments for variant CJD).

The court can also be asked to decide about the person's personal welfare, such as where they should live or whether they should have contact with other family members, in cases where there are conflicts that can't be resolved between professionals or family members.

If it seems that court procedures may be needed, you should seek advice from a solicitor.

12. What if the person becomes involved in court proceedings?

13. Protecting vulnerable people from abuse

14. Further help

15. About this leaflet

This leaflet is published by the Legal Services Commission (LSC). It was written in association with Penny Letts, a policy consultant specialising in mental health and capacity issues.

Leaflet Version: November 2019

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