Mental Health: protection through Lasting Power of Attorney
Traditionally loss of mental capacity is viewed by most clients as only happening as a result of dementia. The pandemic has brought to the forefront of everybody’s attention the fact that an illness can come about very quickly, and leave you in the position when you are no longer able to make your own decisions.
We are regularly contacted by adult children who ask “how can I help my parents?” and “how can I pay bills on their behalf?”. The straightforward answer is that they either need to be appointed as an Attorney either under an enduring Power of Attorney or the more modern Lasting Power of Attorney (LPA) for Property and Financial Affairs, or they need to be appointed as a Deputy by the Court of Protection.
If they want to make decisions about their parents’ Health and Welfare they either need to be appointed as an Attorney under an LPA for Health and Welfare, or appointed as a Deputy by the Court. Whilst Property and Financial Affairs deputyships are quite common, Health and Welfare deputyships are extremely rare.
The main requirement when someone signs an LPA is that they have mental capacity to do so, i.e. they understand what they are signing, its effects and that their attorneys will be able to make decisions even if they are not able to do so themselves.
Capacity, i.e. the ability to make your own decisions, varies according to the decision that needs to be made, and the timing of the decision. This means that somebody may have capacity to make one decision at a particular given point in time, but may not be able to make a more complicated decision. At a different point in time they may able to make any decision, or may not be able to make any decisions whatsoever.
Under the Mental Capacity Act, one must assume that someone has capacity to make their own decisions unless it can be shown that they do not have capacity.
The combined effect of these principles is that capacity can fluctuate. This means that attorneys can make decisions on someone’s behalf when they do not have capacity, and the person may regain capacity and make their own decisions at another time.
The older Enduring Powers of Attorney (EPA) worked differently, and once someone has lost mental capacity, the attorneys were under a duty to register the EPA with the Court and that was evidence that the person no longer had capacity and would not be able to make their own decisions in the future.
Another principle under the Mental Capacity Act is the concept of assisted decision making where Attorneys should try to help the person who needs to make a decision to make their own decision. It is only after they have tried to help and the person is still not able to make a decision that the Attorney should then step in and make the decision for them.
The third principle is the concept that you can make any decision you choose, even if it is an unwise decision, and simply making an unwise decision does not necessarily mean that you do not have capacity.
Where someone does not have capacity and decisions are being made by Attorneys however, the Attorneys may only act in that person’s best interests. Accordingly, Attorneys cannot necessarily make the same decisions as the person who has lost capacity as Attorneys are unable to make unwise decisions.
Lastly, Attorneys must always act in the way that is less restrictive of the person’s rights and freedoms.
These important safeguards help ensure that the person who has made a Power of Attorney and who has lost capacity and is unable to make their own decisions is protected.
Lasting Powers of Attorney are a way of ensuring that if you are not able to make a decision yourself, somebody you have chosen will able make decisions for you. You are not giving up the right to make your own decisions at any stage, you are simply allowing someone else to make them for you if you are not able to do so yourself.
Having a Lasting Power of Attorney in place, should it be ever be needed, can provide great peace of mind for clients and remove potential sources of anxiety and worry.
A carefully prepared Lasting Power of Attorney can also include guidance and preferences as well as instructions to Attorneys to ensure that those aspects that are important to you are followed by your Attorneys.
Here to Help
Further information concerning the preparation of Lasting Powers of Attorney or how Attorneys should make decisions please contact the Older and Vulnerable Client Team at Longmores.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.