Mental Capacity and Lasting Power of Attorney
This information has been designed by LPFT Carers Council to assist carers and relatives to understand mental capacity and lasting power of attorney.
The Mental Capacity Act 2005
To make a decision we need to:
- Understand relevant information
- Remember it for long enough to make a decision
- Weigh up (or use) the relevant information when making the decision
- Communicate our decision
A person’s ability to do this may be affected by things like a learning disability, dementia or a mental health problem. The ability to make a decision, or capacity can change; A person with epilepsy may not be able to make a decision during the day after a seizure. Someone with a mental health problem may not be able to make a decision now, but in a week’s time they may feel much better.
There are five principles to consider:
1: Presumption of capacity
The first and most important principle is the presumption of capacity. This means it is assumed that everyone has capacity until proven otherwise. A lack of capacity should not be assumed based on age, appearance, condition or behaviour. Also if a person has lacked capacity to make a previous decision, this does not necessarily mean they cannot make the decision in question. For example, a lack of capacity to manage finances, does not mean a person lacks capacity to decide where they want to live. Capacity is decision specific.
2: Support to make a decision
All practical steps should be taken to help the person make the decision themselves before treating them as unable to make a decision. There may be a certain time of day they are more alert or a different way of communicating with them. They should be provided with all of the relevant information to make the decision.
3: Ability to make unwise decisions
Making an unwise decision does not mean the person lacks capacity. As long as the person understands the decision and consequences they are free to make that decision. For example, smoking cigarettes.
4: Best interest
If an act is done or a decision made on behalf of a person who does not have mental capacity then it must be done or made in that person’s best interests. Every decision is unique to the person and circumstances involved.
5: Least restrictive
If a decision is made or act done to a person who does not have mental capacity it should be the least restrictive option of the person’s rights and freedoms. Other less restrictive options should be considered and applied if at all possible.
The 4th and 5th principles apply only when a person has been assessed to not have mental capacity for the decision in question.
Lasting Power of Attorney (LPA)
A LPA is a legal document that gives someone you trust the authority to help you make decisions, or to make them and take actions for you if you become unable to do these things yourself.
You can only set one up at a time when you have the capacity to make the decision of having an LPA yourself.
There are two types of LPA:
- Property and Financial Affairs
- Health and Welfare.
You can have the same person act as an attorney for both LPA. However, you have to apply on different forms for each type of LPA. You can also appoint different people as attorneys. When any appointed attorney acts on your behalf, they will not able to choose any decision that they wish as they will be bound by the principles of the Mental Capacity Act 1-5 as above.
Property and Financial Affairs LPA
This allows your attorney to make financial decisions and take financial actions for you, such as:
• paying your mortgage
• collecting your pension or benefits
• managing your bank account
• paying bills
• arranging repairs to your property
• selling your home.
You can choose which decisions your attorney can make. The LPA for property and financial affairs can be used while you still have mental capacity if you wish, otherwise it becomes effective when the person is lacking capacity. Your attorney must keep their own money separate and keep accounts of how they use your money.
Health and Welfare LPA
This LPA can only be used once you have lost mental capacity. It covers decisions relating to your care, such as:
• where you should live
• your medical care
• your social care
• your diet
• who you should have contact with.
When setting up an LPA for health and welfare, you will need to decide if you also want to allow your attorney to make decisions about life-saving treatments, such as cardiopulmonary resuscitation (CPR).
How to make a LPA
You need to complete an official form from the Office of the Public Guardian (OPG). It must then be registered with the OPG to be valid. It can take around 10 weeks to register an LPA.
The LPA must be signed by you, your attorney and a witness. You’ll also need an independent third party (a certificate provider) to confirm that you:
• have the mental capacity to set it up
• haven’t been put under pressure to create it.
A certificate provider could be someone you know well or a professional, such as a doctor, solicitor or social worker.
You’ll need to complete separate forms if you want to set up a financial decisions LPA and a health and welfare LPA. It costs £82 to register each LPA (so £164 for both), but you may pay less or nothing at all if you’re on a low income or receiving certain benefits. More information about applying for a LPA or EPA www.gov.uk/power-of-attorney. (Please note that only EPAs made and signed before October 1, 2007 can still be used. After that date donors had to make a LPA instead). You’ll need to fill out a form and provide evidence of your income or any benefits you receive.
You can cancel an LPA while you still have mental capacity. You’ll need to issue a deed of revocation to do this. The Government website (www.gov.uk) has information on how to end an LPA.
If you have any concerns about how an attorney is acting on behalf of someone else, report it to the Office of the Public Guardian.
The OPG has a guide to help you fill out and register your LPA application.
What happens if I don't set up a power of attorney?
If you lose mental capacity in the future and you haven’t set up a lasting power of attorney then best interest decisions can be made by health and social care staff involved in your care on your behalf. In these circumstances health and social care staff should, where possible and appropriate, consult with anyone previously named by you, anyone engaged in caring for you and close relatives and friends. The best interest decision will still be made by health and social care staff, but they should consider and document the views of others within the decision-making process.
In certain circumstances the Court of Protection can also appoint a deputy to make decisions on your behalf. Someone who wants to make decisions for you can apply to the Court of Protection to become a deputy for either or both :- property and financial affairs decisions and health and welfare decisions.
You may have to pay to become a deputy, although help is sometimes available to pay these.