Power of Attorney and Court of Protection

Power of Attorney – changes following the Mental Capacity Act 2005

The Mental Capacity Act 2005 for England and Wales came into force in October 2007. The Act will generally only affect people aged 16 or over and provides a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves. Mental capacity means the ability to make decisions or take actions affecting daily life, for example, when to get up, what to wear, when to eat, or whether to go to the doctor when feeling unwell. It can also mean the ability to take major decisions such as accepting medical treatments and making end of life decisions, or how to manage large sums of money or property. Some people may have difficulty making these decisions, either all of the time or just at some specific occasions. This could be a result of for example:

• A learning disability.

• Dementia

• A mental health problem

• A brain injury or stroke

If a person is unable to make a specific decision at a specific time, they can be said to lack capacity to make that decision.

The Mental Capacity Act is now in force in England and Wales and provides a framework to empower and protect people over 16, who may lack capacity to make some decisions for themselves. It makes it clear who can take decisions in which situations, and how they should go about it. It also allows people to plan ahead for a time when they may lack capacity. The Act covers major decisions about someone’s property and affairs, healthcare treatment and where a person lives, as well as everyday decisions about personal care (such as what a person eats), where the person lacks capacity to make decisions themselves. There are five key principles that under pin the whole Act set out in Section 1 of the Act:

• A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.

• Individuals being supported to make their own decisions – a person must be given all practicable help before anyone treats them as not being able to make their own decisions.

• Unwise decisions – just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.

• Best interests – an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests.

• Least restrictive option – anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

What does the Act do?

The Act enshrines in law current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It replaces statutory schemes for Enduring Powers of Attorney (EPA) and Court of Protection receivers with reformed and updated schemes.

Lasting Power Of Attorney

The Mental Capacity Act allows people aged 18 and over to choose and appoint someone to make their health, welfare and/or financial decisions if in the future they lack capacity to make these decisions for themselves. This person is called an attorney and is appointed by a formal document called a Lasting Power of Attorney (LPA). The person making the LPA is called the donor. LPA replaces the previous EPA documents.

There are two different types of LPA:

• A personal welfare LPA is for decisions about health and personal welfare, such as where to live, day to day care or having medical treatment.

• A property and affairs LPA is for decisions about finances, such as selling the donor’s house or managing their bank account.

An attorney is appointed to make decisions as if they were the donor themselves. Attorneys must act in the donor’s best interest and follow the Code of Practice.
The donor will be able to choose:

• The same person to be their personal welfare and property and affairs attorney

• Or different people for making different decisions relating to their personal welfare or finance

• Only a personal welfare attorney

• Or only property and affairs attorney

The donor will be able to specify whether their attorney can only make very specific decisions on their behalf. For instance, a donor might want their attorney to make welfare decisions about his care, but not medical decisions.

The most important thing is that the donor must be able to understand what it means to appoint an attorney and to be able to choose for themselves who they want to make decisions for them in the future. To appoint an attorney, the person will be able to get a special form from the Office of the Public Guardian (OPG) or stationers that provide legal packs. When completing the form, they will also be able to choose the individuals they want notified when the LPA is being registered. This does not have to be family members; it is up to the donor to choose. A certificate will also have to be signed by witnesses to say that the donor has understood what they were doing when signing the form and that there was no fraud or undue pressure placed upon them when the LPA was being created. LPA forms can also be obtained online via www.GOV.UK and www.justice.gov.uk or by contacting:

Office of the Public Guardian

PO Box 15118
B16 6GX
Tel: 0300 456 0300
Text phone: 0115 934 2778
Fax: 0870 739 5780
Email: customerservices@publicguardian.gsi.gov.uk

Having An LPA is a safe way of maintaining control over decisions made for you because:

• It is registered with the Office of the Public Guardian before it can be used

• You choose someone to provide ‘a certificate’, which means they confirm that you understand the significance and purpose of what you’re agreeing to

• You can choose who gets told about LPA when it is registered (so they have an opportunity to raise concerns)

• Your signature and the signatures of your chosen attorneys must be witnessed

• Your attorney(s) must follow the Code of Practice of the Mental Capacity Act 2005 and act in your best interests

• The Office of the Public Guardian provides helpful support and advice.


Court of Protection

If the person you care for no longer understands what it means to appoint an attorney, then you might need to consider applying to the Court of Protection in order to be granted permission to make decisions on their behalf as a deputy. The Court of Protection makes decisions for people who are unable to make their own decisions around issues concerning the person’s property, financial affairs, health and personal welfare. The Court of Protection can:

• Decide whether a person is able (‘has capacity’) to make a particular decision for themselves

• Make decisions on financial or welfare matters on behalf of people who are unable to do so

• Appoint a deputy to act for someone who is unable to make their own decisions

• To remove deputies or attorneys who fail to carry out their duties

• Decide whether a LPA or EPA is valid

• Hear cases concerning objections to the registration of a LPA or EPA

The Court of Protection Charter tells you what kind of treatment you can expect if you have to make decisions for someone else, there are a number of reasons why you might need to apply to the Court of Protection:

• Ask the court to make a decision about someone’s property and financial affairs or their health and welfare

• Apply to be made a deputy for someone else.

• Make a will on behalf of someone else

• Object to the registration of a power of attorney

For further information about applying to the Court of Protection contact:

Court of Protection

Archway Tower
2 Junction Road
London, N19 5SZ
Customer Enquiry Service: 0300 456 4600
Or visit www.GOV.UK  or www.justice.gov.uk  to download forms and documentation.


Registering an LPA

Before an LPA can be used, it must be registered with the Office of the Public Guardian (OPG). The donor may choose to register it as soon as the forms have been completed, or the donor can leave the LPA unregistered until it is needed, at this point the attorney must register it. When the LPA is registered, people chosen by the donor and listed on the form must be notified. If the LPA is for health and welfare decisions, the donor may wish
to consider early registration so it can be used if an emergency situation arises. There is a fee charged for registration.

Contact the OPG at:

Office of the Public Guardian

PO Box 15118
B16 6GX

Tel: 0300 456 0300
Text phone: 0115 934 2778
Fax: 0870 739 5780
Email: customerservices@publicguardian.gsi.gov.uk
Websites: www.GOV.UK www.justice.gov.uk

How and when can a LPA be used?

Personal Welfare Attorney: This type of LPA can only be used once it has been registered and only when the donor is unable to make particular health and welfare decisions themselves. The decisions the attorney is able to make will depend on any restrictions the donor has indicated on the LPA form. If the donor wishes the attorney to be able to make decisions about life-sustaining treatment they will need to specifically provide for this in the form. The Personal Welfare Attorney cannot make financial decisions unless they have also been appointed as a financial attorney.

Property and Affairs Attorney: This type of LPA can be used at any time after it is registered, unless the donor has stated that it must not be used whilst they have the capacity to make their own decisions. Some people find it easier to let their attorney take over the management of their financial affairs even though they can still be involved in the decision making. Others may only want their finance LPA used when they no longer have capacity to make decisions.

Unless the donor has placed restrictions on the form, then the attorney will be able to sign cheques, operate bank accounts, make investments and buy and sell property in the person’s best interests. The attorney will have to keep the person’s money separate from their own and be able to produce detailed accounts to the OPG. Attorneys cannot make any decisions about health and welfare unless they are also a welfare attorney.


Existing Power of Attorney arrangements

Any existing EPA arrangements are still valid and can still be registered after the Mental Capacity Act came into force in October 2007. If an existing EPA has not been registered because the donor still has capacity, and is able to make decisions, then a donor now has the option to:

• Destroy the EPA and make a finance and property LPA

• Keep the EPA for finance decisions

• Make a separate LPA for welfare and health decisions

In cases where the Court of Protection has appointed receivers to deal with a person’s property and affairs and/or deal with a person’s health and welfare decisions receivers will now be known as Deputies. The Court will specify what powers a deputy should have, and these powers will be as limited in scope and duration as possible.
The role of finance deputies will be much like the current receivers role. Welfare deputies are new and it is unlikely that they will be appointed by the court unless a series of linked health and welfare decisions need to be made. A deputy will be appointed by the Court of Protection if the person you care for has not appointed or is unable to appoint an attorney.

For further information about the Mental Capacity Act and LPA and how LPA may affect any benefits claimed by yourself or the person you care for please contact:

• Your solicitor

• Bournemouth & District Law Society, Tel: 01202 587551,
Email: office@bournemouthlaw.com www.bournemouthlaw.com – who can recommend a solicitor in your area if you do not have one

• Jobcentre Plus (for people aged under 60) – 0845 604 3719 (national)

• Pension Service – 0845 606 0265 (national)

• Freephone Benefit Enquiry Line – 0800 88 22 00 (national).

• Your local CAB

Further sources of help with Lasting Power of Attorney forms is available from:
SCA at http://www.scagroup.co.uk/advocacy/lpoa/a-guide-to-filling-out-lasting-power-of-attorney-forms


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