Power of Attorney and Court of Protection

Lasting Powers of Attorney (LPA) are signed whilst the donor has mental capacity to manage his or her affairs, but will continue to be valid even if the donor loses mental capacity.

If a person has not made an Enduring or Lasting Power of Attorney, and becomes mentally unable to manage their affairs, an application can be made (usually, but not always, by a family member) to the Court of Protection, for that person to be appointed as a “Deputy”, to manage that person’s affairs. This is a much more complicated method of proceeding than signing an LPA.

Both LPA’s and Deputyship are legal methods under the MCA by which decisions can be made for persons lacking mental capacity. The key difference between the two is that:

The appointment of a Deputy may be required for a person who lacks mental capacity and who has assets that need to be administered or decisions taken about their personal welfare.

A Deputy is a person appointed by the Court of Protection to manage the personal welfare or the property and affairs of another person, who lacks the mental capacity to manage them themselves. A Deputy can only act under an Order of the Court of Protection. This Order sets out the Deputy’s powers and entitles the Deputy to act on behalf of the person lacking capacity.

For example, there may come a time when a person with dementia will need a Deputy to collect their income and benefits and sell assets in order to pay care home fees. Or, a person with acquired mental impairment may need a Deputy to administer a Court settlement to pay for an ongoing care, or make decisions about medical treatment.

A Deputy will not be required if the person lacking capacity has previously made an LPA.  In this case, provided the LPA has been properly registered, the attorney can continue to make decisions on behalf of the person lacking capacity.

A person who has mental capacity therefore has more control over the LPA process and choice of attorney and the LPA may therefore be more likely to reflect the person’s own wishes.

There are two types of LPA:

(a)  With a “Property & Financial Affairs” LPA the chosen Attorney(s) will be able to make exactly the same decisions that the Donor can make now about their money and property. The Donor can, by granting an LPA, give their Attorney(s) complete authority which means he/she/they may make decisions on the Donor’s behalf which may include:

• buying or selling any property (land, buildings or other assets) the Donor owns;

(b)  With a “Personal Welfare” LPA the chosen Attorney(s) may make decisions on the Donor’s behalf which may include:

• deciding where the Donor should live;

Clearly an LPA is a very important legal document and when choosing an Attorney, the Donor must be confident that the chosen Attorney (or Attorneys(s)), know what the Donor wishes to do and that the Donor is comfortable with the decisions that the Attorney(s) will be making on the Donor’s behalf.

The major safeguard in the process of making an LPA is that it is a legal requirement that the LPA must be registered with the Office of the Public Guardian (OPG) before it can be used.

A further requirement before registration of the LPA will be to identify someone to provide a Certificate confirming among other things, that the Donor understands the purpose of the LPA and the scope of the powers that the Donor is giving to the Attorney(s).

If the LPA is to be put into use immediately then up to five individuals of the Donor’s choice must be notified of the application to register the LPA. This is a further security measure providing an opportunity for “the persons to be notified” to object to the registration of the LPA and the Court is obliged to investigate the rationale and basis of any objection as to why the LPA should not be registered and become operative.

It is a requirement of the Mental Capacity Act 2005 when appointing an Attorney under an LPA, the Attorney(s) must consult with the Donor in respect of any decision making until such time that the Donor ceases to have the mental capacity (as defined in the Act), to be involved in such a decision making process.

It is also possible for the Donor to restrict the operation of the LPA and give guidance to the Attorney(s) as to how the Donor’s wishes should be met.

We therefore recommend all our clients; to have LPA’s prepared so that the appropriate arrangements are in place, should they be needed.