Lasting Powers of Attorney and Capacity Act 2018

ISOLAS LLP

The Lasting Powers of Attorney and Capacity Act 2018 has came into operation [today/23rd April 2018], making provision for lasting powers of attorneys, advance decisions, as well as safeguards once mental capacity has been lost. It will allow individuals a greater level of decision-making power when it comes to their mental capacity and planning ahead.

Lasting Powers of Attorney (LPAs)

The Act will enable anyone over 18 years of age, whilst they still have mental capacity, to appoint a trusted person to make decisions on their behalf at a time in the future when they may no longer have capacity. It is described as ‘lasting’ because it remains valid and is intended to be used, when the person loses mental capacity. This gives individuals more control over what happens if they were to have an accident or develop an illness, which may make it impossible for them to make or communicate their own decisions in future. There is a central registry where all LPAs shall be registered before they are valid and can be used.

The LPAs allow the person they appoint to manage their health and welfare matters, their property and financial matters, or both. They can cater for day-to-day decisions such as what to wear or eat, to decisions about how money and property should be administered, without any need for court involvement.

Advance Decisions

Advance decisions, which are sometimes called ‘living wills’, allow a person to express their preference to refuse specific medical treatment if, at the time in the future when that treatment is to be given, the person has lost capacity to consent to it. For example, someone with strict religious beliefs who does not want a blood transfusion can make this clear in advance, so that if they require one at a point in time when they have become unable to consent the treatment, their wishes can be followed.

Permitted acts

The Act gives statutory guidance as to how to administer and care for those who no longer have capacity. It gives greater certainty to those dealing with individuals who have lost mental capacity, as to what can and cannot be done in relation to their care and treatment.

Restriction on liberty safeguards

Sometimes, those with mental health conditions including autistic spectrum conditions, learning disabilities, dementia, personality disorders and old age require care that means they are not free to come and go as they like in their accommodation. The Act introduces safeguards for such individuals, so that their liberty is only restricted for the time it needs to be and is reviewed at regular intervals, for their safety. Adult health and social care services are encouraged to use restrictive interventions only as a last resort and for the shortest possible time.

In the case of adults who live at home, but may be more comfortable in a care home, or are currently in a care home but may need moving to a different one, it provides a procedure to ensure such persons are adequately cared for and their needs reviewed at specified intervals.

Independent Capacity Advocates

The Act also introduces independent capacity advocates, who support people who cannot make or understand decisions themselves, by stating their views and preferences. They are in no way connected to the patient and their role is to ensure that the person’s wishes can be respected and followed.

The philosophy behind the legislation supports personal autonomy and a person’s decisions and best interests.

Drafting of the legislation – ISOLAS LLP

Sarah Miles, a Senior Associate with ISOLAS LLP, has assisted the Government of Gibraltar in the drafting of the legislation. ISOLAS has produced a booklet on LPAs which is available in print format or in PDF. For a printed copy, please drop by ISOLAS LLP’s offices at Portland House on Glacis Road. Alternatively, please visit our website for more details: http://bit.ly/gibraltarlastingpowerofattorney