A Lasting Power of Attorney (LPA) is a trusted person (or persons) assigned to make decisions on behalf of someone who lacks capacity to make decisions for themselves. Crucially, LPAs are assigned by an individual while they still have capacity, as a means of preserving their wishes should they become unable to make decisions for themselves at some point in the future.
Meanwhile, the role of Deputy is one formally assigned by the Court of Protection to make specific decisions on behalf of someone who does not have capacity, if they have not previously assigned an LPA.
The difference between these two roles can be confusing at times, as a person may lack capacity to manage their property and affairs, but may have sufficient capacity to assign an LPA or to voice a preference for who could be their deputy. In this blog, we discuss whether it is better to apply for an LPA, or take the Deputyship option, and how to assess capacity for each.
LPA or Deputyship?
In order to decide between an LPA or Deputyship, consider the following:
- Can the individual understand, retain and weigh up the decision to make the advanced decision to assign an attorney(s) to either health and welfare or property and finance?
If the answer to this question is ‘yes’, then LPA is the direction to take.
If the individual cannot meet these criteria, then we must ask:
- Can the individual demonstrate mental capacity to manage the decision(s) with graded support to enable capacity?
At this stage, it is important to remember and apply the third principle of the Mental Capacity Act: that a person is free to make what others may perceive to be an unwise decision. The issue to be addressed here isn’t whether you agree or not with their decision, but rather, do they have the capacity to understand, retain and weigh up the decision(s) with graded support.
If they cannot, then a COP3 Mental Capacity Assessment should be completed and submitted as part of a deputyship application to the Court of Protection
If in doubt, please seek legal advice for further clarification and support.
Capacity assessment: Lasting Power of Attorney (LPA)
When assessing mental capacity for the decision to assign one or more attorneys to either type of LPA, at the minimum an assessment should include:
- What an LPA is
- Associated roles
- Responsibilities of said roles
- Who and who isn’t being assigned
- Risks and benefits of the process
- Associated rights and responsibilities, including the right to change their LPA while they still have capacity, that their decision-making should be supported and in their Best Interest (etc.)
Capacity assessment: Deputyship
The decision to be assessed on the CoP3 form for deputyship is whether the individual can manage the relevant decision in question. Most commonly, this will relate to their property and financial affairs, but may also include their health and welfare.
For the purpose of assessment, the specific decision being addressed should be broken down into related questions. These include (but are not limited to):
- Understanding of relevant information
- Retention of information
- The individual’s personal context
- Probable scenarios around the decision(s)
- Risks and benefits around the decision(s)
- Discussion around the practical application of the decision (relating to a typical week)
- How the individual reaches their decision(s)
As with all capacity assessments, we must always remember the five principles of the Mental Capacity Act – that an individual has a right to make an unwise decision, and that their capacity should be supported at all times, through graded support.
Assessments for LPA and COP3
Here at Mental Capacity Ltd, we offer a range of training and support services to support the delivery of ‘gold standard’, person-centred mental capacity assessments. If you are a health or care professional, we offer bespoke training services and consultancy to support you conducting your own assessments.