Current legislation seeks to safeguard the wishes of people who can’t express them for themselves, but the system is still far from perfect. With a Lasting Power of Attorney in place, your chosen attorney can speak for you. You will have told your nearest and dearest, i.e. your attorneys, that, depending on the circumstances, it is not your wish to be ‘saved’ at any cost.
Without a power of attorney in place, those closest to you will have to apply to become a deputy of the Court of Protection. The application is lengthy and complicated and the fees are considerably higher than those for Lasting Powers of Attorney, and are ongoing. If the application is approved, which can take 6–9 months, the deputy has limited powers to assist the person who has lost mental capacity. Those caring for you – your spouse or your children, for example – do not have the power to stop artificial nutrition and hydration (ANH), whereas attorneys appointed under a lasting power do.
You may remember the unfortunate case of 17-year-old Tony Bland, who was a victim of the Hillsborough disaster. The tragic events of 15 April 1989 left him in a state of almost complete unawareness, and he was kept alive by ANH until a court ruled in 1993 that he would be the first person to be allowed to die by withdrawing this ‘treatment’.
The next case concerns a 43-year-old woman known only as ‘M’ (to protect her privacy). M’s partner woke up to find her drowsy and confused on the morning they were setting off for a skiing holiday. She quickly fell into a coma and was found to have suffered viral encephalitis, leaving her with extreme and irreparable brain damage. She was kept alive by ANH for seven years.
David James had surgery for cancer but developed an infection that led to pulmonary disease and cardiac arrest. He too was left with profound neurological deficiencies.
The lives of these three ordinary people were devastated by events that could happen to any of us. It was not until many years after the tragic events that the cases came before the High Court.
Anyone can set out in written form whether they want to refuse consent for treatment, including ANH, under a Lasting Power of Attorney. Without such a document in place, the matter will always have to be decided in court by a judge, even if all parties are agreed that the proposed withdrawal of treatment is in the person’s best interests. Such proceedings not only entail lengthy delays and high legal costs; they also greatly exacerbate the strain and distress experienced by family members and carers.
Those working in ‘end-of-life care’ believe that the practice of keeping people alive by ANH does not serve the best interests of patients for whom all hope of recovery has passed and who, given the choice, would refuse treatment.
So, the decision is yours. If you want to make choices about your own healthcare in circumstances where you have lost mental capacity, you must appoint an attorney.
We therefore advise you to make a Lasting Power of Attorney now. There is no better time to secure lifelong peace of mind. The alternative is untenable; you might wait years for a decision by a High Court judge and, ultimately, this decision may not be what you, your family and your carers would have chosen. Last but not least, if a High Court hearing is necessary to determine the wishes of your family; your finances will, at the very least, be severely depleted.
 Each application for deputyship costs £400 and a further £500 for a court hearing, if it is necessary. Your deputy would make an application for your health and care (£400) and for your finances (£400). There is also a security bond payable, depending on the level of finances, and a supervision fee each year £320. Your Deputy can recover these charges from your bank account.