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Care, consent and competence

Many legal advisers who have older clients exercise substituted decision making powers, either as attorneys under enduring powers, or as receivers. These powers do not, however, enable decisions about medical or personal care to be made by attorneys or receivers in respect of individuals who lack mental capacity. Where such decisions have to be made - sometimes as a matter of life and death, sometimes as a matter of day to day management - the law is often misunderstood.

1 March 1999

Care, consent & competence

Many legal advisers who have older clients exercise substituted decision making powers, either as attorneys under enduring powers, or as receivers1. These powers do not, however, enable decisions about medical or personal care to be made by attorneys or receivers in respect of individuals who lack mental capacity. Where such decisions have to be made - sometimes as a matter of life and death, sometimes as a matter of day to day management - the law is often misunderstood.

The purpose of this article is to outline the legal position in various circumstances where the legal adviser may become involved. Most of the principles derive from the common law; there has been little statutory intervention. Consequently the present law has the propensity to develop in different ways as needs and circumstances change. Assuming, however, that the Law Commission's substantial recommendations on mental incapacity2 are implem...

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