The Mental Capacity Act 2005 came into force on 1 October 2007 and protects the rights of an individual to make their own decisions whenever it is practicable to do so. The Act presumes that all individuals have the mental capacity to make decisions in their own best interests. Every attempt should be made to try and assist a person in making a decision for themselves. A lack of mental capacity will only be declared when all reasonable attempts have been made to assist that person to make a decision and those attempts have failed. The Act states that in these circumstances, trusted individuals should be able to make decisions on their behalf.
The evaluation of your mental capacity needs to be assessed on each decision being made. An assessment will be made as to whether you are able to:
- Understand all the information given to you
- Retain that information long enough to make a decision
- Evaluate the information to make a decision
- Communicate the decision – via all possible means.
Lasting Power of Attorney
If you want someone to act for you in the future should you lose mental capacity, then a ‘Lasting Power of Attorney’ (LPA) made when you still had capacity could ensure decisions are made the way you would have wanted them to be, therefore made in your best interests.
An LPA is a legal procedure that allows you (whilst you still have capacity) to nominate another person/people to make decisions on your behalf with regards to property, finances and healthcare. If you make an LPA, you are said to be ‘the donor’ and the person acting for you is known as ‘the attorney’.
There are two types of LPA for individuals to make:
Financial Decisions LPA which means your attorney has the authority to make decisions about your financial affairs. This might include:
- Opening, closing and using your bank and building society accounts
- Claiming, receiving and using your benefits, pensions and allowances
- Paying your household, care and other bills
- Making or selling investments
- Buying or selling your home
The LPA can be used by the attorney whilst you still have mental capacity. However, you can set up a Financial Decisions LPA that includes a restriction only allowing someone to act for you if you lose mental capacity. The choice is yours.
You do not have to be a homeowner or have a large number of assets to make an LPA for financial decisions. That is not what it is about. You might, in the future, have difficulties managing your financial affairs, your bank account and bills alone. You may want someone to help. You can appoint different attorneys for your personal finances and your business affairs. In this case you must fill in two LP1F forms.
Health and Care Decisions LPA which gives your attorney authority to make decisions about your health and personal care. This can only be used once you lose capacity to make relevant decisions. Health and care decisions might be about:
- Giving or refusing consent to certain health care procedures/medications etc
- Staying in your own home
- Getting help and support from social services
- Employing carers to take care of your daily needs so you can stay in your home.
- Moving into residential care / choosing a good care home
- Day-to-day care such as your diet, where your shopping is done, how you dress or daily routine
You are able to choose whether your attorneys or your doctors should make decisions about accepting or refusing medical treatment to keep you alive. This can only be done if you can’t make or understand that decision yourself. This decision has its own section in a health and welfare LPA and is called a DNSR.
It is not necessary to have to have complex health or care problems to make an LPA. It is generally considered a way of planning for your future care in the event that you can’t make decisions for yourself in future.
Application for LPA
There are separate forms to apply for each type of LPA. If you want your attorney to have the powers to make decisions of both kinds, you need two separate LPAs, even if the same person is appointed for both.
LPAs allow a Donor to give different Attorneys responsibility for different decisions. For example, one Attorney may be responsible for bank accounts and another responsible for decisions relating to health and personal welfare. Whatever the scope of decision making responsibilities that are attributed, Attorneys are under a duty to act in the Donor’s best interests at all times. As stated earlier, the donor can choose when to enable the donor to make decisions regarding finances but healthcare decisions must only be made by others when the donor lacks capacity.
Registering an EPA
If you lose mental capacity, your attorney must register the EPA with Office of the Public Guardian (OPG) to begin or continue using it. When it has been registered, your attorney must:
- Involve you decision making wherever possible
- Make only the decisions you cannot make yourself
- Follow any instructions you gave in your EPA
LPAs will only become valid once they are registered with the Court of Protection. Once the LPA has been registered with the Court, your Attorney(s) will be able to act on your behalf in accordance with the terms of the LPA.
The Attorney is responsible for registering the EPA because it is only registered when they believe that the Donor is becoming or has become mentally incapacitated.
You must have at least one attorney and you my have several. Each person should agree to be your attorney before you name them in your LPA as the job comes with responsibilities they might not be keen on. When selecting attorneys, consider:
- How many attorneys you want and if they will be able to work together
- If you trust them to act in your best interests
- How well you and they know each other
- How well they understand you and your needs
- How willing they’ll be to act when the time comes
- How organised they are in their own affairs
Most people choose family members and close friends to be their attorneys. Anyone with mental capacity and aged 18 or over can be your attorney, including:
- Spouse/long term partner
- Child, grandchild or other close family member
- A close friend
- A professional, eg: a solicitor
Attorneys must sign your LPA after and the certificate provider have. They should sign as soon as practicable after the certificate provider, ideally on the same day.
What Attorneys Must Do
There are five basic principles set out by the MHA that an attorney must follow when working out whether and how to act on your behalf:
- They must assume you can make your own decisions unless it is established that you cannot
- They must help you to make as many of your own decisions as you can, taking all practical steps to help you do so.
- Your attorneys must not treat you as unable to make a decision simply because you make a decision they do not agree with
- Your attorneys must act and make decisions in your best interests when you are unable to do so
- Attorneys must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedoms but still achieves the purpose, before committing to making a decision
Ways an Attorney Can Act
Jointly and severally (attorneys act either together or individually)
This means your attorneys can make decisions either on their own or together. Any action made by one attorney alone is still valid. Your attorneys may choose how to make decisions but they must always act in your best interests. This is the most common way of appointing attorneys because attorneys can make simple or urgent decisions ASAP without asking your other attorneys and if an attorney can no longer act, the LPA won’t be void.
There is an option to allow you to give more specific instructions to specific attorneys though most people don’t do this.
Jointly (attorneys agree every decision unanimously)
This means your attorneys should make all decisions together, agreeing unanimously and signing any relevant documents. Attorneys must agree on every decision, whether big or small. If your attorneys can’t all agree on a decision, it can’t be made. This is not always practical; If one of your original joint attorneys can no longer act, all attorneys must stop acting for you as the law treats attorneys who act jointly as a single unit.
Jointly for some decisions, and jointly and severally for other decisions
This means your attorneys must make certain decisions together but other decisions individually. If you choose this course of action you must clearly state which decisions your attorneys should make t unanimously, when they should act jointly. If your attorneys can’t all agree on a decision, it can’t be made.
With this option, if one attorney stops acting for you but you have replacement attorneys, they can take over making all joint decisions .