Speech by Simon Hughes on Thursday 27 November at the 'Compassion in dying conference – end of life decisions: the need for information and support'.
Thank you for inviting me to speak at this event today.
When I took up my post in the Ministry of Justice (MOJ) and became responsible for policy around mental capacity and Lasting Powers of Attorney (LPA), I quickly came to the view that planning for the future - and for the end of life – is difficult, but incredibly important.
It is something that we can all do to make sure that our own wishes are heard, and to make things easier for our family and friends.
The Mental Capacity Act is a really wide ranging and important piece of legislation.
The House of Lords Select Committee recognised this, and set us a challenge of raising awareness of the Act and working together to make sure it is properly embedded.
One of its key recommendations was to form an independent body to oversee and co-ordinate actions to drive up awareness of the Act.
We have considered this carefully. And we believe that a strong National Forum, with an independent chair, will bring to the table a wide range of views from outside government; most importantly, it will also offer independent scrutiny and help us to drive action.
Today I can confirm that we will begin the process of setting up this forum and recruiting the chair immediately.
We all have the right to decide how we live our lives – where we live, who we live with, how we spend our money. We can also decide what kind of care and treatment we would like when we are in need.
People who lack or lose capacity to make – or communicate – these decisions do not lose that right.
What they may lose is the ability to exercise that autonomy – which makes it even more important for us to give all possible support to make sure their voices are heard.
The Mental Capacity Act introduced Lasting Powers of Attorney, known as LPAs, to replace the previous Enduring Power of Attorney.
It also allowed a LPA to be made for decisions about health and care, as well as finance and property.
Registering an LPA allows us to plan ahead and to make sure our wishes and preferences are followed if we lose capacity in the future.
It means we choose people we trust to make decisions on our behalf if we are not able to take those decisions for ourselves.
We can use a LPA to set out clearly what decisions we would want to make.
And of course, any decision they do make must be taken in our best interest. And a key part of a best interest decision is honouring the wishes and feelings you have expressed in the past.
We must make an LPA while we have mental capacity – it is a conscious choice. That is why planning ahead is so important.
Nobody likes to think about the possibility of losing mental capacity. But the reality is that our population is ageing, and sadly dementia is on the rise.
According to the Alzheimer’s Society 225,000 people develop dementia every year. That’s roughly 1 person every 3 minutes.
And one in three people over 65 will develop dementia. The need to plan ahead is clear.
And it’s not just those of us in middle age or beyond who should be thinking of putting a LPA in place.
The sad fact is that we can become incapacitated at any age. Every 90 seconds someone is admitted to hospital in the UK with an acquired brain injury. [source: Headway]
Just as we should all consider making a will to make sure our wishes are carried out after our death, we must also think about how we would want to be cared for and treated if we are ever in a position where we can’t make decisions for ourselves.
Research tells us that while an estimated 40% of the UK’s adult population has a will, less than 1% has an LPA. This leaves a startling number of people without an important protection in place.
An LPA can cover financial affairs, or health and welfare decisions.
At the moment, by far the majority of current LPAs cover property and financial affairs – a sensible and practical measure to overcome difficulties family members might otherwise face if left to deal with banks, payments or selling property.
Health and welfare LPAs are less common but can give similar reassurance both to the individual and to their family and friends.
For the individual, there is the knowledge that their wishes and preferences will be represented by people they trust. And for family and friends, the reassurance that they will be able to make sure that the voice of their loved one is heard.
It may be that fewer people are aware that they can make a health and welfare LPA, or think that as next of kin they have the powers they need. I want to raise awareness so that more people can benefit from the reassurance that future planning can bring.
We are doing what we can to make the process of registering an LPA simpler and more accessible.
Most of the process can be carried out online and the forms contain guidance at each step of the way so that they can be completed without the need for legal advice. Of course, some people may choose to seek advice, particularly if their circumstances or family arrangements are complex.
But we do recognise the power of the LPA. It is a legal instrument which essentially allows another person to take control of your money, your care and your life.
This is not something to be given lightly and there are important safeguards in place to make sure they are made and used properly.
When making an application for an LPA, the form must be witnessed by an independent person to confirm that you have mental capacity and that you understand what you are doing.
And there is provision to notify people with an interest that the LPA is being made – and to give them an opportunity to object.
If there are concerns about the way a person is using an LPA, the Office of the Public Guardian (OPG) will investigate and have the LPA revoked if necessary – and, of course, it will signpost to the relevant agencies if it believes there has been abuse or criminal activity.
But this is a very tiny minority of cases. By far the majority of LPAs are made by people who want someone they trust to act in their best interests. And they are used in good faith by people looking after the best interests of those they care about.