Adults with Incapacity Amendment Act: consultation

We appreciate that any adjustment to the current position regarding Depravation of Liberty must be given great consideration and approached cautiously.

Our Private Client partners had two viewpoints. Some of our partners felt that any advance consent to Depravation of Liberty was dangerous, as people may change their minds in the intervening period. They gave the example that a person may give their Will instructions, including their funeral wishes, but a few decades later may change their views on issues such as their funeral wishes. Some of our other partners felt that if the granter fully trusts the Attorney and has had the concept of Depravation of Liberty clearly explained to them verbally and in writing, they should be allowed to make an advance consent to Depravation of Liberty within their Power of Attorney.

The partners who were in favour of an advance consent to a Depravation of Liberty proposed the following wording in the Welfare section of the Power of Attorney document:


1. Having consulted and taken appropriate advice, to make decisions regarding my care and accommodation (including authorising (i) my transfer / placement in any establishment or facility; (ii) the retaining of me in such accommodation; or (iii) the return of me there).

[It is my express wish, that all necessary steps be taken to allow me to remain living within my home so long as it remains practicable for this to occur, using all the financial resources I have. I do not wish to be me moved into a care / nursing home unless there is no other option for my care and safety.]

OR

[It is my express wish that I should live wherever I can be best cared for and looked after, including but not limited to a care / nursing home. ]

For the avoidance of doubt, I (i) have fully considered and appreciated the implications of giving my Welfare Attorney this power which potentially affects my liberty; (ii) trust my Welfare Attorney to act in compliance with their duties as expressed in s.1 of the Act; and (iii) want to express my wishes and feelings clearly so as to avoid any dubiety. As such: -

a. I hereby expressly confirm my understanding of this power and state my wish that decisions regarding my liberty (and any potential restriction / deprivation thereon where this is needed for my protection or safety, or those of others) shall fall within the sole discretion of my Welfare Attorney;
b. I confirm that I have had the implications of my decision herein explained to me in detail including my rights in the context of Article 5 of the European Convention for Human Rights regarding deprivation of liberty and the Human Rights Act 1998;
c. this power includes taking any necessary decisions and giving the required authority to take steps to temporarily or permanently restrict and/ or deprive me of my liberty if such a decision is, in the view of my Welfare Attorney (using their sole discretion in line with the principles of s1 of The Act) in my best interests in terms of my protection and safety, or that of others;
d. Any deprivation of liberty should be proportionate to the level of protection needed to safeguard my health or welfare, and that of others. There should be a periodic, recorded, review of the use of this power to establish that the deprivation is still necessary for my protection or safety. A deprivation of liberty should only remain in force for as long as is required for my protection or safety, or that of others;
e. I reserve my right of appeal against any such measures taken by my Welfare Attorney and my Welfare Attorney will be bound by any directions of the court following any application under section 3(3) of the Act ; and
f. I regard any steps by any local authority, state, governmental or quasi-governmental organisation (including but not limited to the Mental Welfare Commission) to limit, delay or obstruct my expressed wishes, preferences and feelings as manifested in the instructions of my Welfare Attorney in this respect, to be a direct and unwarranted attack on my wishes, right to express my views, human rights and the powers I am hereby specifically granting. Accordingly, I authorise my Welfare Attorney to take all necessary steps to honour and fulfil my stated wishes and for my Continuing Attorney to provide funds to support such steps.


In addition, they proposed that a written explanation of this clause was given to the granter prior to signing the Power of Attorney, in terms such as:


This power states your wishes regarding care.

Given the potential effect of this power, it is vital that your views are stated as clearly as possible, and you give your Attorneys the necessary powers (or restrict their powers appropriately) to ensure your wishes are implemented and honoured. Please read it carefully.

[You have stated that you wish to remain in your home and do not want to go into a care home unless there is no other reasonable option in your best interests.]
OR
[You have stated that you wish to stay where you can get the best care. This may be in a care home].

It is important that your Attorney knows your views on care.

The operation of the Powers could result in your liberty being restricted e.g. a care home may have security measures such as coded doors to limit your ability to leave a building. Deprivation of Liberty (to use the formal legal term) is a significant restriction and unless done for permitted reasons, is prohibited under law. For this reason, granting this power to your Welfare Attorney is a considerable step. To comply with the law, we need to highlight this to you.

You will see that the POA makes reference to Article 5 of the European Convention on Human Rights (ECHR), which was brought into UK law in the Human Rights Act 1998. Article 5 protects your right to liberty (freedom) and security. This means that you cannot be imprisoned or detained without good reason. One of the good reasons mentioned in Article 5 is if a person is of “unsound mind”. Anyone who is deprived of their liberty by arrest or detention shall be entitled to be told why they are being detained, to take proceedings by which the lawfulness of the detention shall be decided speedily by a court, and their release shall be ordered if the detention is not lawful.