The ability to understand and make a decision when it needs to be made is called ‘Mental Capacity’. The Mental Capacity Act 2005 (MCA) is a law that protects and supports those who can’t make some or all decisions for themselves. The act came into force in 2007 and applies to people aged 16 and over in England and Wales.
Time and decision specific
The MCA applies to situations where someone is unable to make a particular decision at a particular time because of the way their mind or brain is affected. Assessments of capacity should be time and decision specific. You cannot decide that someone lacks capacity based upon age, appearance, condition or behaviour alone.
The MCA says that a person is unable to make a particular decision if they cannot do one or more of the following four things:
Understand information given to them
Retain that information long enough to be able to make the decision
Weigh up the information available to make the decision
Communicate their decision.
MCA - Five Key Principles
Principle 1: 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
Principle 2: 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
Principle 3: Unwise decisions
People have the right to make what others might regard as unwise decisions
Principle 4: Best interests
If a person has been assessed as lacking capacity then any action taken, or decision made for, or on behalf of that person, must be made in his or her best interest
Principle 5: Less restrictive option
Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all.
Lasting Power of Attorney
A Lasting Power of Attorney (LPA) enables a person who has capacity and is over 18 (Donor) to choose another person or people (Attorney(s)) to make decisions on their behalf.
There are 2 different types of Lasting Power of Attorney; property and financial affairs and/or health and welfare.
An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. An unregistered LPA will not give the Attorney any legal powers to make a decision for the Donor.
A fee is charged (to be reduced from £110 to £82 from 1st April 2017) for registration of each Lasting Power of Attorney application, registered with and administered by The Office of the Public Guardian. Tel; 0300 456 0300.
Enduring Power of Attorney
An Enduring Power of Attorney is a legal process in which a person (the Donor) hands over to someone else (the Attorney) the power to make decisions about their financial affairs and property.
An Enduring Power of Attorney signed by both the Donor and Attorney before Oct 2007 when Lasting Power of Attorney came into force with the Mental Capacity Act 2005 can still be used and registered as a legal document. You should make the application to register the EPA as soon as you have reason to believe the Donor is losing the mental capacity to manage their affairs.
An Attorney can use the power straight away if that is the Donors wish or the Donor can make it clear that the EPA is only to be used if they become mentally unable to manage their affairs in the future.
Court of Protection - Deputy
When no Enduring or Lasting Power of Attorney exists and someone lacks the capacity to make their own decision the Court of Protection can appoint Deputies to make decisions in the best interests of those who lack capacity. 0300 456 4600
Department of Works and Pensions - Appointee
A DWP Appointee allows someone who is over 18 years old to manage another person's benefits if they physically or mentally unable to do this themselves.
An appointment to act is made under Regulation 33 of the Claims and Payments Regulations 1987 and ONLY applies to welfare benefits
The OPG is an agency that supports the Public Guardian in the registration of Enduring Powers of Attorney (EPA) and Lasting Powers of Attorney (LPA), and the supervision of deputies appointed by the Court of Protection.
It also helps attorneys and deputies to carry out their duties, and protects people who lack the mental capacity to make decisions for themselves
Solicitors for the Elderly (SFE) is an independent, national organisation of lawyers, such as solicitors, barristers, and legal executives who provide specialist legal advice for older and vulnerable people, their families and carers