According to UK consumer rights organisation Which?, the Power of Attorney system is in ‘desperate need of improvement’. This is because many people don’t understand how the system works, and it can also be difficult to put vital Lasting Power of Attorney (LPA) arrangements in place.
This report serves to further highlight a general lack of awareness and understanding surrounding the role of the LPA under the Mental Capacity Act, as well as some quite serious misconceptions surrounding LPA responsibilities in action. The Which? report also highlights ongoing difficulties around how to apply the LPA role in practice, both from the perspective of those assigned as LPA, as well as from professionals in terms of how to liaise with said person(s), and the role of the LPA in law.
This general lack of understanding has led to an increasing number of cases entering Court of Protection – often when the Court is called upon to assign a deputy when a vulnerable individual no longer has the Mental Capacity to assign an LPA for themselves. The Court of Protection has also seen an increasing number of cases whereby the law has been misapplied or misunderstood – especially around the respective roles of LPA and Next of Kin (NOK).
In this blog then, we aim to explore the key differences between LPA and NOK and hopefully make case for more LPAs to be put in place for the protection of individual rights.
Next of Kin
A Next of Kin (NOK) is generally assigned by an individual through records at their general practice. If no NOK has been recorded, then the NOK is presumed to be the nearest relative.
While some readers may assume the role of NOK is an important one, as far as the law goes, the role of NOK is minimal; it merely refers to the sharing of relevant information (assuming the individual has given consent).
Crucially, the NOK does not have any rights to make decisions on behalf of the individual.
Lasting Power of Attorney
In contrast with NOK, a Lasting Power of Attorney (LPA), does have certain rights to make decisions on behalf of an individual if they are unable to do so. However, this can only happen if an LPA has been set up in the correct manner, at a time when the individual has been deemed to have Mental Capacity to make the specific decision to set it up.
As we have discussed in previous blogs, LPAs come in two forms: Health & Welfare, and Property & Financial Affairs.
While the role of an LPA can prove invaluable, we should always start from a position where we should try and support the individual to make decisions independently if at all possible.
If an individual can make a specific decision with support, then the role of LPA does not come into play, and the individual can decide as they so wish.
The exception to this rule is with the case of Property & Financial Affairs if, and only if, the individual has instructed the LPA(s) to complete an action on their behalf, which the LPA(s) must then carry out to the letter of the individual. This does not give the LPA the right to access an individual’s personal information (whether bank statements, letters or otherwise) if they have the Mental Capacity to make a specific decision at a particular time.
It is therefore vital that Mental Capacity be continually assessed for each decision, both formally and informally, to ensure the correct processes are being upheld.
Acting in Best Interest
If it has been determined that an individual with an LPA in place does not have Mental Capacity at a specific time for a particular decision, then the LPA must act in their Best Interest, within their allocated remit.
An LPA cannot work outside their allocated role, and has no right to information beyond this allocated role.
For example, an LPA for property and finance cannot decide attendance or treatment for a healthcare appointment or agree care plans. Equally, they cannot have access to all of a person’s mail. Therefore, it is important to be aware of roles and responsibilities, with justified rationale for access, decisions, provision or withholding information etc.
Of course, if a Best Interest decision is needed, the identified decision-maker has a duty to consult all relevant parties. Therefore, if the LPA is not responsible for making a certain decision, they should still be consulted, and their views considered.
Keeping the individual involved
Whatever the decision to be made, the individual should be kept involved in the decision-making process as much as possible, with appropriate graded support that considers their thoughts, wishes and beliefs. This is clearly directed within the Mental Capacity Act and its accompanying Code of Practice.
To close this blog, I would like to signpost a wonderful blog that discusses the LPA process, including specific points of instruction to aid an LPA with future decisions. It also provides examples and questions to reflect on to help support this process, explaining why it is so important to fill out.
We have also just recently completed our series of reflections on the proposed new Mental Capacity Act Code of Practice, which includes monitoring roles for LPAs, plus more clearly defined responsibilities, which should further support vulnerable people.
As ever, if you have any questions at all about NOK, LPA or anything relating to the Mental Capacity Act, then please do get in touch. We also offer bespoke consultancy and training services for care providers and healthcare teams in the application of the MCA, the use of the LPA role, and the new Liberty Protection Safeguards, which are due to come into force soon.