Lasting Power of Attorney

Woman Signing Power Of Attorney DocumentAn attorney is a person or persons appointed by an individual to make decisions for them if they lose capacity in the future.

The Mental Health Capcity (MCA) permits attorneys to make decisions about financial or welfare matters for an individual who lacks capacity. Financial and property matters can include the following:

  • buying or selling property
  • managing bank accounts
  • investments
  • claiming benefits

Welfare matters can include:

  • what someone’s diet consists of (for example, if a person was diabetic)
  • whether they should receive medical treatment
  • dealing with personal information
  • giving consent to take part in education or social activities

Under the MCA, an attorney is appointed under the Lasting Power of Attorney (LPA).

If you want to become the attorney for another person under a LPA, the 'donor' has to have capacity to make this transfer. Usually you will need to do this if it is likely the donor will lose capacity in the future.

A worsening mental disease, for example Alzheimer’s, may cause this future loss of capacity. It is important that at the time this LPA is drawn up, the donor is assessed as having full capacity. This then means that the attorney can only make decisions on behalf on the donor, once the donor has lost capacity to do this for him or herself.

As a donor, you can appoint more than one attorney at a time to fulfil this role under a LPA.

There are two different types of LPA:

  • LPA for property and financial affairs
  • LPA for health and welfare decisions.

Once an LPA has been drawn up, you must register it with the Office of the Public Guardian. This can be completed by either the donor or yourself. There is a fee of £130 per application. Each of the two types of LPA requires a separate fee to be paid.

A donor might want to restrict what you can decide to do under the LPA, and you as an attorney are under a duty only to make the decisions that the LPA allows you to. You must always consider the five key principles of the MCA and only make decisions that are in the best interests of the person who lacks capacity.

As an attorney, you also have a duty to:

  • make decisions with appropriate care and skill
  • carry out the donor’s instructions as stated on the LPA
  • not take advantage of their position and must act in the best interest of the donor
  • not allow other people to make decisions, unless they are authorised to do this
  • act in good faith
  • respect the donor’s confidentiality
  • follow directions given by the Court of Protection
  • not give up the role without notifying the donor and the court

If you are an appointed attorney who has an LPA to deal with financial affairs, you also have a duty to:

  • manage accounts
  • keep the donor’s money and estate separate from your own

As an attorney, you are specifically appointed by the donor to safeguard their interests if they lose capacity in the future. But there are also roles known as deputies.

Deputies can only be appointed by the Court of Protection (CoP), and are appointed in order to make decisions for someone who does not have capacity. If there is a dispute about what decision should be made for a person who lacks capacity, the CoP will normally make this decision without appointing a deputy. But if there is a need for someone to make decisions on an ongoing basis, the CoP will consider who is the most appropriate person to be appointed as deputy.

Like attorneys, deputies must acknowledge the five key principles of the MCA and only make decisions that the CoP authorises. These decisions must be in the best interests of the person who lacks capacity.

It is often the case that it is difficult to determine what is meant by the term ‘best interest’. A number of factors are considered in deciding what is in a person’s best interest. This is done through listening to their beliefs, be it political or religious and any other factors expressed by you, carers or family members.

There are certain decisions that can never be made on someone’s behalf. These are decisions so personal to the individual that no one else could possibly decide for them such as entering into a sexual relationship, or decisions controlled by other types of law, for example voting. 

Institutions that help those who lack capacity

There are two main institutes that have been mentioned can help those who lack capacity:

Court of Protection (CoP)

The Court of Protection (CoP) protects those who lack capacity in many ways. It is able to determine the validity of, or terminate an LPA. The CoP can appoint deputies to make decisions in the person lacking capacity’s best interests. It can also make decisions in particularly difficult situations and cases where there is doubt, or a dispute, about whether the decision is in the person’s best interests. The CoP can also remove deputies or attorneys who have not carried out their role properly.

The Office of the Public Guardian (OPG)

The Office of the Public Guardian (OPG) has responsibilities such as registering LPAs and deputies, and sending CoP Visitors who visit clients in their own homes and provide reports to the Court and the OPG. The OPG supervises deputies appointed by the CoP and provides information to help the CoP make decisions.

There can also be instances where decisions may be made in the future without your consent.

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