Adults aged 18 or over with the capacity to make decisions are able to make provision for the event that sometime in the future they may lack capacity to make certain decisions.
This can be done by giving another person Lasting Power of Attorney (LPA) - the authority to act on their behalf or by making advance decisions to refuse medical treatment.
People given formal powers under LPA to make decisions on behalf of adults who lack capacity are bound by the Mental Capacity Act and its Code of Practice. They have a statutory responsibility:
- to act within the limits of the powers given to them
- always to act in the person's best interests
Adults who lack capacity and do not have such formal arrangements and require significant decisions to be made may be subject to a best interests meeting or the issue may need to be taken to the Court of Protection. The court may appoint a deputy to act as decision maker or make a declaration about what is in the person's best interests.
Lasting Powers of Attorney
There are two types of LPA: personal welfare andproperty and affairs. It is not advisable for the same person to have LPA for both personal welfare and property and affairs.
- LPAs are legal documents and are only valid if completed on the statutory form
- LPAs must be signed by the donor
- LPAs should normally name people who should be informed when it is to be registered
- LPAs must contain a certificate completed by an independent third party
- LPAs must name the person (or persons) who is to act as attorney
- LPAs must be registered with Office of Public Guardian (OPG) before they can be used
- If registered some time ago and not used, the attorney should inform the OPG when they start to act under it
- LPAs may have restrictions or conditions. There are some decisions that can never be delegated to an attorney
- Attorneys should never be a professional/paid carer who is or is likely to be involved in the adults care or treatment - the only possible exception being that they are a close relative
- Attorneys can only make decisions prescribed in LPA, and must carry out the donor's instructions, ie they cannot assume decision-making for any other matters
- They may be consulted, if appropriate, over other matters unless there are explicit instructions not to
- Property and affairs attorneys should keep accounts. An LPA regarding finance would be immediately effective unless the person specified at the time that this should not occur until they have lost capacity to make decisions in this area
Court of Protection
The Court of Protection has the power to:
- decide whether a person has capacity to make a decision for themselves
- make declarations, decisions or orders affecting people who lack capacity to make decisions
- appoint deputies to make decisions for people who lack capacity
- decide the validity of LPAs and remove deputies or attorneys who fail to carry out their duties appropriately
Who can make applications to the court?
Anyone can make an application if they feel they have just cause. Usually people making applications will be:
- vulnerable adults who feel they have been unfairly determined as lacking capacity to make a particular decision
- family members who disagree amongst themselves or with an agency about what's in the best interests of the person lacking capacity
- family or friends who wish to seek authority to manage the affairs of a person who is lacking capacity to make decisions about their own affairs
- NHS Trusts which need to make a major decision about serious medical treatment for a person who lacks capacity
- local authorities which have concerns about major decisions affecting the person's welfare
NHS trusts and local authority
NHS trusts must bring certain decisions before the court (see Code of Practice 8.18) and local authorities should consider applying to the court in situations where:
- ongoing decisions may need to be made about the personal welfare of a person who lacks capacity
- specific financial decisions need to be made and no one else has authority to manage property or affairs
In most cases, even the most major and difficult decisions can be arrived at using the core principles of the act and best interests decision making.
It is expected that NHS and/or social care professionals will use these processes and take all reasonable steps to quickly negotiate and resolve disagreements involving care or treatment of someone who lacks capacity.
In particularly serious, complex and difficult cases it is expected that NHS/social care professionals will consult widely with experts and senior managers in order to clarify roles, powers and duties in relation to the matters in hand.
It is expected that robust assessments of capacity have concluded that the person does not have capacity to make the decision and that all reasonable alternatives have been considered.
Where disagreements cannot be resolved the NHS trust or local authority will need to decide, having taken its own legal advice, whether an application to the court is required.
Court appointed deputies
- The court can appoint deputies who are adults (18+ years who manage either the person lacking capacity's property and affairs or welfare decisions. A deputy could be a family member or a professional (though not a paid carer directly involved in the care or treatment of the person)
- The scope and limits of a deputy's authority will be clearly determined in the order of appointment
- Deputies must act in accordance with all the act's statutory principles, especially best interests and have regard to the code of practice