Regardless of where you are in the world I am confident that advising you to get power of attorney in case your VIP cannot make decisions is sound advice.
Mental capacity means the level of understanding that someone has. In the UK the law states that a person lacks capacity if they are unable to make a decision for themselves – in relation to a specific matter at a particular time – because of an impairment of, or a disturbance in, the functioning of the mind or brain.
In terms of the UK, the Mental Capacity Act 2005 aims to protect people who cannot make decisions for themselves. It also allows a person to plan ahead for a time when they may not be able to make decisions themselves. It clarifies who can make decisions, in which situations, and how they should go about it.
CarersUK say on their website:
If the person you are looking after can’t make a decision, then someone else has to take that responsibility. Very often, you, as a carer, do that about all sorts of day to day things. If it is a decision about social care services or health treatment, then usually the social worker or doctor has to make the decision, but with your help and advice.
The law says that these decisions must be made in the ‘best interests’ of the person you look after. This means taking all the relevant factors into account, including:
– consulting you as the carer and any other family members and close friends
– involving the person you look after as much as possible and listening to what they say
– if the person previously had mental capacity, then their past opinions, values and beliefs must be taken into account
– restricting the person’s freedom as little as possible.
As the carer you probably know more about the person you care for than anyone else, and so you want the best for them.
Consulting you means involving you in the decision about best interests; listening to your opinions and respecting your knowledge of the person.
A Lasting Power of Attorney (LPA) is a legal document which allows someone who is 18 years or over and who has mental capacity to choose other people to make decisions on their behalf in the situation where they lack the mental capacity to make decisions themselves.
The person/people chosen to make decisions are known as attorneys. An LPA can give the person you care for peace of mind because they will have someone they can trust to act on their behalf. It can be very useful for a carer to be an attorney, because this gives them more rights to make decisions for the person they care for.
There are two types of LPA that are valid in England and Wales: Property and Financial LPA and Personal and Welfare LPA.
Property and Financial Affairs LPAs
A Property and Financial Affairs LPA allows the attorney(s) to make decisions about things such as paying bills, dealing with the bank and selling a house. It can relate to some of the person’s money or all of it – that will be up to the person who is granting the power.
The person granting the power can also decide if they want the option of their attorney managing their money even if they still have capacity to make these decisions themselves, or if they want their attorney to manage their money only if they no longer have the mental capacity to do it themselves.
Sometimes it is useful to have an LPA in place even when the person still has capacity to manage their own money, for instance if the person is in hospital for a long time and cannot get to the bank.
If you are a financial attorney, you can only make the decisions about the person’s money and property that it states in the LPA, not any others.
Personal health and welfare LPAs
A personal health and welfare LPA lets the attorney make decisions about health treatment and about community care. It can cover all aspects of health and care or just some, with the decision resting with the person granting the power.
A personal health and welfare LPA cannot come into effect until the person has lost the capacity to make decisions about health and social care. Personal welfare attorneys do not have any right to manage the person’s money.
The process for making an LPA
- The person granting the power has to complete a form. There are separate forms for a financial LPA and for a personal health and welfare LPA. The forms and instructions about how to fill them in are on the website of the Office of the Public Guardian. They are quite long and detailed, but you do not necessarily need a solicitor to complete them.
- Someone called a ‘certificate provider’ has to certify that the person understands what they are doing and has not been put under any pressure to complete the form. The certificate provider must be either a professional (such as a solicitor, a doctor or a social worker) or someone who has known the person for at least two years (as long as that person is not a member of the family of the person or the attorney and there is no conflict of interest).
- The completed forms have to be sent to the Office of the Public Guardian to be registered. An attorney cannot make decisions using the power until the registration is completed. There is a fee to register a LPA. You can phone the Office of the Public Guardian to find out the exact fees involved. If the person making the LPA is on some specified means-tested benefits, they may not have to pay the fee or may only have to pay part of the fee.