You will often hear me talking about the
importance of making a Lasting Power of Attorney (LPA) – my family will vouch
for that! And hopefully many of those of you that are reading this will now
have made your own LPA and advised your family members to do so also.
So, what now?! If you have been made an Attorney, what are your responsibilities before and after the Donor loses mental capacity?
The Office of
the Public Guardian provide the following supporting guidance on the role of
the attorney:
·
LP14: How to be a property and finances attorney which can be
found at https://www.gov.uk/government/publications/how-to-be-an-attorney/how-to-be-an-attorney-property-and-financial-decisions
·
LP15: How to be a health and welfare attorney which can be
found at https://www.gov.uk/government/publications/how-to-be-an-attorney/lp15-how-to-be-a-health-and-welfare-attorney-web-version
An important
distinction between the two types of LPA is that, once registered, a
property and affairs LPA allows the Attorneys to use the LPA if the Donor
has got mental capacity as well as when they lose mental capacity (unless
a restriction has been put into the document specifying that the LPA can
only be used when the Donor lacks mental capacity). In contrast, once
registered, a health and welfare LPA can only be used when the Donor lacks
mental capacity to make decisions (or the Attorney reasonably believes the
Donor lacks capacity).
Firstly, check
the LPA document. The person making the
LPA (the ‘Donor’) may have inserted restrictions, conditions and guidance into
their LPA specifying the types of decisions that their Attorneys can and
cannot make, as well as clarifying their duties.
The
role of the Attorney differs depending on whether they are an Attorney for
Property and Financial Affairs or Health and Welfare.
Property and Financial Affairs
A registered property and financial affairs LPA enables the Attorneys to make decisions about:
- Buying and selling property;
- Opening, closing and operating bank/building society accounts; and
- Claiming, receiving and using benefits, pensions and allowances.
Ask the Donor where they keep their
financial information, so you know what accounts the Donor has. Once registered, Attorneys for Property and
Financial Affairs have a duty to keep accounts and financial records and
produce them to the Office of the Public Guardian and/or to the Court of
Protection on request.
If the donor still has capacity, talk to them about
how they would like you to manage their affairs. For example,
·
give birthday gifts to children or other friends and
family (and to what value)
·
like spending on clothes, music or trips (and how
much)
·
donate to particular charities (and how much)
·
want to sell or rent out their home if they move
into a care home
·
prefer to keep a minimum bank balance
Write these things down – or ask the person to write down what’s
important to them.
Health and Welfare
A registered
health and welfare LPA enables the Attorneys to make decisions about:
- Giving or refusing consent to particular types of health care, including medical treatment decisions;
- Decisions about staying in your own home, perhaps with help and support from social services;
- Decisions about moving into residential housing and choosing the right care home; and
- Day to day issues, like diet, dress or daily routine.
- Giving or refusing consent to particular types of health care, including medical treatment decisions;
- Decisions about staying in your own home, perhaps with help and support from social services;
- Decisions about moving into residential housing and choosing the right care home; and
- Day to day issues, like diet, dress or daily routine.
If the Donor
has capacity, it is useful to sit with them and discuss their values and views,
their likes and dislikes. The Donor may
like to write a letter of wishes. Discuss
with them:
·
where they want to live
·
if they follow any particular diet, such as
vegetarian or vegan
·
their views on health care – if you’re chosen in the
LPA
to make decisions about ‘life-sustaining treatment’, this should include what
they’d accept doctors doing to keep them alive
·
any political or moral outlook that shapes the
decisions they make
·
what will happen if they can’t care for their pets
·
how they like to dress and wear their hair
·
their hobbies and tastes in music, TV, radio or
books
·
if they prefer being indoors or outdoors
·
small things that cheer them up, such as a favourite
film, a crossword, a glass of wine or a walk
Having these conversations now will help the Attorney to make decisions on the Donor’s behalf
if required. It can be helpful to review
these wishes regularly as circumstances change, especially in relation to
health and welfare decisions.
Mental Capacity
Act
When making
decisions for the Donor, Attorneys have a duty to act based on the
principles of the Mental Capacity Act 2005 and have regard to the Mental
Capacity Act Code of Practice. The Attorney must follow these principles:
1. Presume the Donor has capacity
to make their own decision unless it is established that they cannot do so;
2. The Attorney must help the Donor
to make as many of their own decisions as they can. You must not treat the Donor as unable to
make the decision in question unless all practicable steps to help the Donor
have been made without success;
3. If the Donor
has mental capacity, they have the right to make a decision for themselves even
if unwise;
4. The Attorney
must make decisions and act in the Donor’s best interest when the Donor is
unable to make the decision in question;
5. Before an
Attorney makes a decision, they must consider alternatives to ensure the least restrictive
option is taken
When the Donor
lacks mental capacity, the Attorneys must act in the Donor’s best
interests in making decisions for them when they are unable to make
the decision themselves. They must consider all the relevant
circumstances. This includes consulting with the Donor and others who are
interested in their welfare. When deciding what is in the donor’s best
interests, bear in mind:-
• their past and recent wishes;
• any views the donor has expressed in the past;
• their beliefs and values;
• the views of family members, parents, carers, etc;
• the possibility that the donor could regain capacity;
• any other factors that may be specific to a donor’s circumstances; and
• any guidance in the LPA or other written statement.
• their past and recent wishes;
• any views the donor has expressed in the past;
• their beliefs and values;
• the views of family members, parents, carers, etc;
• the possibility that the donor could regain capacity;
• any other factors that may be specific to a donor’s circumstances; and
• any guidance in the LPA or other written statement.
Decisions
that an Attorney cannot make
An Attorney should always be aware of the decisions that they have not got the power to make under an LPA. For a property and affairs LPA, this includes:-
An Attorney should always be aware of the decisions that they have not got the power to make under an LPA. For a property and affairs LPA, this includes:-
·
making a will on the donor’s behalf (although the Court
of Protection may authorise an Attorney to execute a Will for the Donor);
·
voting on the donor’s behalf;
·
access the donor’s will unless the donor has included a
condition that an Attorney can. However, an Attorney can apply to the
Court if they believe the will is essential in helping them carry out
their role, and the person who holds the will refuses to show it to the
Attorney.
In addition,
there are restrictions on making gifts and an LPA only grants power to
make gifts in specific circumstances.
For a health and welfare LPA, decisions cannot be made about:-
For a health and welfare LPA, decisions cannot be made about:-
·
consenting to marriage or a civil partnership;
·
consenting to a decree of divorce (or civil partnership
dissolution) based on two years’ separation;
·
consenting to sex;
·
medical treatment for a mental disorder if the treatment is
regulated by Part 4 of the Mental Health Act 1983.
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