In a recent blog we explored the decision-specific nature of the Mental Capacity Act (2005) in practice. In today’s blog, we will explore how this applies to Lasting Power of Attorney (LPA).
Understanding LPA
Lasting Power of Attorney (LPA) is a legal document that enables the person (the ‘donor’) to assign a trusted person, or persons, to make decisions on their behalf, should they be deemed to lack capacity for a specific decision at some point in the future.
There are two types of LPA. These are Property and Finance, and Health and Welfare. Each of these LPAs covers a specific set of decisions relating to that area.
- Property and Finance covers decisions such as: accessing the donor’s financial information, investing the donor’s savings, buying and selling property, claiming, receiving and using of benefits etc.
- Health and Welfare covers decisions such as: where the donor lives, day to day care, consenting or declining medical examination and treatment, complaints about the donors care and treatment etc.
Both types of LPA come into force if a person is determined to lack capacity for a decision within its relevant area. For example, if a person was assessed to lack capacity to change their bill suppliers following the supplier going bust, then an attorney for Property and Finance could act to make that decision on their behalf.
An Attorney can only act in a person’s Best Interest, making specific decisions on their behalf within the scope of their LPA role if the person is assessed not to have capacity for that specific decision. Meanwhile, every effort should be made to support capacity in line with the key principles of the Mental Capacity Act (2005).
It is also worth noting here that an Attorney for Property and Finance can act under the donor’s direction in certain circumstances while they still have capacity. For example, if the donor could not use online banking following loss of fine motor control linked to a stroke, but could make informed decisions, they could direct their attorney to act on their behalf. This does not apply to Health and Welfare Attorneys.
Without an LPA or Deputy in place, Next of Kin do not have the legal right to access a person’s financial accounts.
Nor are they necessarily the ‘decision maker’ for decisions on behalf of their loved one, if lacking capacity for said decision.
Case study
To help us examine the role of LPA in relation to Mental Capacity, I’d like to introduce a familiar fictional character: Bilbo Baggins.
- Bilbo has recently moved to the area and has support of many dear friends including his nephew, Frodo.
- Approximately 40 years ago, Bilbo experienced an extreme period of poor health, requiring long term hospital admission as a result of a septic infection, which left him with lasting health needs.
- In recent years Bilbo has had increasing frequency of infections. These have led Bilbo to suffer from disorientation and hallucinations. Healthcare professionals have sought to support Bilbo and his family within his home, however, due to deterioration in his health, this has required short stays in hospital. During these times, Bilbo’s decision-making ability fluctuates greatly.
- Bilbo assigned his nephew Frodo as LPA for his Property and Financial affairs only, knowing that his nephew cares deeply for him and is good with money, trusting him in this role if needed.
- His nephew is also his named Next of Kin.
In the present case, Bilbo has recently been admitted to hospital as a result of a new urinary tract infection (UTI), that led to a fall, in which Bilbo has broken some bones. Bilbo is extremely disorientated and doesn’t recognise his family or friends. He is also unable to follow a line of conversation and is unable to retain information.
A number of decisions are required in the coming weeks:
- A surgical procedure to realign his broken bones, which are not healing.
- Urgent repairs to his bungalow following a bad storm that has left several significant leaks, needing repair.
From this, the care team have recognised that a number of mental capacity assessments are required, with Best Interest decisions to be made if required…
When should an LPA act?
On completing the relevant Mental Capacity Assessments, it was found that Bilbo did not have capacity for the two questions identified.
Decision #1 – Surgical procedure
As LPA for Property and Finance, the nephew (Frodo) cannot legally make decisions regarding his uncle’s health, as it falls outside of his remit. With no Health and Welfare LPA in place and no Deputy assigned, then it is the responsibility of the consultant and surgical team to make the decision under Best Interests. In doing so, they have a duty under the Mental Capacity Act (2005) to consult Bilbo’s Next of Kin (Frodo), while also trying to identify Bilbo’s own views on the matter, before making a decision.
Decision #2 – Bungalow repairs
In terms of repairs to Bilbo’s bungalow, in this case, the decision-maker would be the LPA for Property and Finance (Frodo), who should seek Bilbo’s views on the matter, and should include him as much as possible in the decision-making process, even though he has been found to lack capacity. The said attorney (in this case, Frodo), would be able to act on his uncle’s behalf, accessing bank accounts, coordinating repairs, and resolving any insurance claims related to the storm damage.
However, he should also ensure he continually reassesses Bilbo’s capacity around the decision, and should work under Bilbo’s direction where possible. He should also return the responsibilities to Bilbo as soon as he regains capacity as he recovers from his short-term infection.
Documentation is essential
The case study example above shows how an LPA’s role can be very complex and can also vary as a person’s mental capacity fluctuates. It is therefore vital than an LPA understand their role and remit, and is familiar with how it relates to Mental Capacity law. The UK government provides a selection of guides and resources to help Attorneys. Many national charities also provide guidance. Whatever the case, an Attorney should always keep records of all actions completed within their role (including receipts). This will help protect both themselves and the individual, and prove to the authorities that they have acted within the law.