Acting as attorney – individuals with capacity
An individual with capacity may wish to create a lasting power of attorney (LPA). An LPA appoints someone to make decisions on behalf of the individual, known as the ‘donor’. The LPA can come into effect either whilst the donor has capacity, or once they have lost capacity. However, it must be created whilst the donor still has capacity.
There are two types of LPAs discussed below and it is important to note that the same person can be appointed for both types. When exercising powers under either LPA, the attorney should think about the individual’s preferences, previous discussions and the various duties contained under the Mental Capacity Act 2005 (MCA 2005).
The test for capacity
The MCA 2005 contains the tests to assess whether an individual has capacity to make decisions. A person lacks capacity if they are unable to make a decision for themselves because of an impairment and the impairment means that the person is unable to make a specific decision when required.
Health and welfare LPAs
Under this type of LPA, the attorney holds powers to make decisions on behalf of the donor which may relate to:
- Medical matters
- Where and who the donor should live with
- The option to access the donor’s personal information (such as medical and legal records).
The attorney is only able to act under this type of LPA once it has been registered with the Office of the Public Guardian (OPG). Furthermore, a health and care attorney must be at least 18 when appointed.
Property and finance LPAs
This type of LPA may allow for decisions such as:
- Buying or selling property
- Making payments to third parties
- Investing the donor’s savings
It is important to note an attorney appointed under a property and finance LPA must have reached the age of 18 and must not be bankrupt.
Deputyship: individuals without capacity
The Court of Protection (CoP) was formed under the MCA 2005 and can make decisions on behalf of people who lack capacity. An application can be made to the CoP to appoint a deputy to manage an individual’s affairs if they have lost capacity.
Deputyship is often applied for when there is no valid Enduring Power of Attorney (EPA) or LPA in existence prior to the individual losing capacity. It is also applied for in order to appoint a deputy instead of the person named in the power of attorney.
It is important for deputies to act within the statutory powers placed upon them and to consider any limits on their decision-making powers under the MCA 2005 and the deputy order.
If an individual loses capacity, it might not be possible for them to create an LPA. However, it may be possible to appoint a deputy to make decisions on their behalf.
This may extend to a single decision or decisions to be made on an indefinite basis, but it will be limited by the deputy order. The individual is protected under deputyship as the CoP supervises the deputy and can vary the level of supervision as appropriate.
Furthermore, the deputy must insure the individual against the deputy misusing their funds. Much like LPAs, it is possible for deputies to make decisions in relation to welfare, property and financial affairs.
Personal welfare deputy appointments are rare and are granted under exceptional circumstances. Decisions under welfare deputies tend to be more limited, but the MCA 2005 contains powers such as:
- Deciding where the individual is to live
- What contact the person should have with specified persons
For an individual to act as a welfare deputy, they must be over 18 years old.
Property and financial affairs deputyship
Under property and financial affairs deputyship, decisions which can be made are set out in the deputy order. These can include:
- Selling and letting property
- Taking possession or control of the individual’s property and affairs
- Managing bank accounts and paying bills
- Appointing investment managers
Again, a property and financial affairs deputy must have reached the age of 18 and must not be bankrupt or have any criminal convictions. It is also possible for a trust corporation to act as a property and financial affairs deputy.