We shall soon have in Gibraltar legislation creating the long awaited Lasting Powers of Attorney. This will fill a gaping hole in the lives and right of choice of elderly people and those suffering from an illness which will inevitably lead to a loss of mental capacity. This legislation has been available in the United Kingdom since 2005 and our own law will be based fundamentally on it. It will enable such persons who can foresee the inevitable moment when they will be unable to manager their own affairs as a result of the onset of mental incapacity to appoint and discuss in detail with persons of their own choice whom they can trust, how they want their business and personal affairs managed and also what decisions they want taken regarding their future healthcare and general welfare.
It is possible today for a patient who is ill or in hospital, or for any other reason incapable of physically managing his affairs, to authorise some trusted person to do important things for him such as dealing with his property or business affairs, going to the bank to pay in or withdraw money or pay his rent or bills. This can be done by granting that person an ordinary Power of Attorney.
The problem is that, if the patient subsequently becomes mentally incapacitated through senility or illness, the Power of Attorney becomes void. The only available solution then is for an application to be made under the Mental Health Act to the Court of Protection (the Supreme Court) for an appropriate Order dealing with a particular facet of the patient’s business affairs or for the appointment of a Receiver to manage his affairs. This can prove time consuming and expensive and, more importantly, can result in the appointment of someone who would not have necessarily been the preferred choice of the patient and with whom the patient will not have had an opportunity previously to discuss his affairs and preferences in detail.
An important aspect of a mentally incapacitated patient’s affairs which is not capable of being delegated in Gibraltar today are decisions to be taken on matters of health and general welfare and, in particular, decisions to be taken on whether the patient should or would wish to be resuscitated if he has suffered a heart attack or stops breathing. By granting a Lasting Power of Attorney, the patient will be able to express, before becoming mentally incapable, not only his wishes as to the future management of his business affairs, but will also be able to leave clear instructions about his healthcare and general welfare and whether, following, for example, a long and incurable illness, he would wish to be resuscitated should he suffer a heart attack or stop breathing.
The new legislation will create two types of Lasting Powers of Attorney. One authorises the management of the personal and business affairs of the patient. It becomes effective once it is registered with the supervising authority to be created or Registrar to be appointed by Government. The Attorney can begin to act immediately upon registration and without having to wait for the patient to become mentally incapable. The other grants authority to the Attorney to make decisions as to the patient’s healthcare and general welfare and about such things as his medical care and treatment and whether he would want his life artificially extended beyond certain circumstances. This type of Power becomes effective only after registration and the patient becoming mentally incapacitated so that he is no longer able to make his own decisions. A Lasting Power of Attorney can be revoked at any time before the patient loses his mental capacity.
Lasting Powers of Attorney, once registered, will be rigorously supervised by the supervising authority or Registrar to be appointed, whose main role is the protection of people who lack mental capacity and the monitoring of attorneys. The authority or Registrar will be able to intervene to investigate allegations of mistreatment or fraud and can report concerns to appropriate authorities such as the Court of Protection, the police or social services.
This legislation is long awaited and will be well received by many of the most vulnerable in our society and afford them the certainty and peace of mind which comes with it.
Eric C. Ellul | Senior Partner | firstname.lastname@example.org