The Mental Capacity Act (2005) and Lasting Powers of Attorney Adult Social Care Provider Forums July 2010 Simon Purdy – MCA/DoLS Co-ordinator

Making Decisions For Other People Section 5 of the Act allows anyone who cares for someone who lacks capacity to carry out certain informal tasks without fear of liability. Such tasks may include personal care, healthcare or other treatment provided that is carried out in the best interests of the person who lacks capacity. In most cases concerning personal welfare matters the principles set out in the Act and chapters 5 and 6 of the Code of Practice will be enough to: help you take action or make decisions in the best interests of someone who lacks capacity; or find ways of settling disagreements about actions or decisions. If unable to settle disagreements, the decision is highly complex or there are ongoing issues for a person lacking capacity, may need to apply to the Court of Protection.

Lasting Powers of Attorney Where do the come from and what are they? The Office of the Public Guardian (OPG) is an executive agency of the Ministry of Justice. Principle function is to deal with representations, and complaints, about how Attorney’s exercise their powers. Lasting Powers of Attorney (LPA) came into being through the Mental Capacity Act 2005 There are two types of LPA – Health and Welfare and Property and Affairs They replace the old Enduring Power of Attorney (EPA) though these may still be valid. They are a powerful, legal document and can only be used when signed, dated and registered. Once certified, the LPA is a legal deed.

Why the change to LPA’s It was considered that previous legal measures to manage peoples affairs when they became incapable were not sufficiently robust and were potentially open to abuse. The MCA now makes it clear about who can make decisions for you and when, in what situations and how. LPA’s now allow people to plan ahead for a time when they may loose capacity to ensure their wishes are recorded and followed more clearly. The principle of Best Interests, central to the MCA, is embedded in the LPA’s The MCA/LPA’s cover all major decisions in a person’s life - property, affairs, health/treatment, where a person lives, day to day decisions.

Property and Affairs LPA You, and anyone you appoint, must be over the age of 18 years. Enables you (the Donee) to legally appoint someone (an Attorney) to make decisions on your behalf. You can appoint more than one Attorney, to make decisions separately, or together, on specified aspects of your property/finances i.e. buying/selling property, opening, closing or otherwise managing bank accounts, pensions, benefits etc. You can include restrictions on this LPA or upon one of more of your Attorneys i.e keep accounts and have then independently audited, LPA only valid when you are out of the country etc Can appoint Attorney/s and use LPA before you have lost capacity – only this LPA

Who Cannot Be Your Attorney Director, owner, manager or a family member of those mentioned, of the care home A bankrupt Attorney looses capacity Donee divorces, annuls, dissolves relationship with Attorney, unless previously specified when Donee had capacity. The Donee or Attorney is dead (!)

Certificate Provider Someone who can ascertain and sign to say that you understand what the LPA is, confirms you have understood the process and have not been put under pressure to agree. Two types of Certificate Provider: Category A: someone known to you personally for at least two years; Category B: Skills Certification – registered health care professional; solicitor, barrister, advocate, registered Social Worker or and IMCA Category B can/may charge a set fee for this service.

Who Cannot Be a Certificate Provider Member of the Donee or Attorney’s family Business partner or paid employee of the Donee or Attorney Attorney on this or any LPA – or EPA Owner, director, employee – or their family – of the care home Director or employee of trust/corporation where the Donee or Attorney hold the role

Named Person/s Anyone you wish to be notified that you are preparing to register an LPA – able to object, through the Court of Protection – if they are of the view you were put under pressure. Objections Category A – Factual grounds – Donee or Attorney is bankrupt, Donee or Attorney is dead, you become divorced etc and there is no specified role, Attorney dies or resigns. Category B – Prescribed grounds – you think the Donee lacked capacity when the LPA was completed and registered, the Donee revoked a condition, fraud is suspected, the Attorney is not working in the Best Interests of the Donee or contravenes the authority of the Attorney.

Health and Welfare LPA As with the Property and Affairs LPA, an Attorney “must have regard for the MCA Code of Practice” and “must act in the Donee’s best interests”. An Attorney is legally allowed to make decisions regarding your personal welfare – including whether to give or refuse consent to medical treatment, staying in your own home (with support if necessary) and where you can live i.e. move to residential care provision and day to day care decisions. Must complete in advance, while have capacity. It is too late to rectify mistakes if registered after capacity is lost. Cannot be used until there is medical evidence to prove the person has lost capacity to make health or welfare decisions.

Enduring Power of Attorney As with an LPA, this is a legal process whereby a Donee can transfer authority to an Attorney to make decisions regarding their finances and property. They were replaced by LPA – Property and Affairs in October Very similar terms and conditions to the LPA. If signed, dated and witnessed before October 2007, you can still register an EPA when you believe the Donee is becoming or has become incapable of handling their affairs.

How Much Does An LPA Cost? See OPG 506 Court of Protection and Office of the Public Guardian: Fees, Exemptions and Remissions – last updated In essence if a person is on means tests benefits (clause regarding ceiling of £16,000 damages) they are exempt from fee payment. Income Remission Up to £12,000no fee to pay £12,001 to £13,50075% remission - you need to enclose 25% of fee £13,501 to £15,00050% remission - you need to enclose 50% of fee £15,001 to £16,500 25% remission - you need to enclose 75% of fee Over £16,500You are not entitled to a fee remission.

Advanced Decision to Refuse Treatment An ADRT – previously known as a living will or an advanced directive – is a decision to refuse specific treatment in specific circumstances. It cannot be used if you have capacity to make decisions at the time the decision needs to be made – as with the core principles and guidelines of the MCA An ADRT cannot be used to refuse basic nursing or personal care or to request specific forms of treatment. Additional, specific rules, apply to refusing potentially life sustaining treatment. Safeguards – must be over 18, evidence of ADRT must be easily found, people who need to be aware need to have copies, and details of any changes. Example forms available from

Guide to LPA Forms and Guidance LPA 103 A guide to people who want to make a Property and Affairs LPA (60 pages) LPA 105 LPA: A guide for people taking on the role of Property and Affairs Attorney under a LPA (52 pages) LPA 107 LPA: A guide for Certificate Providers and Witnesses (16 pages) LPA PA LPA application for Property and Affairs (26 pages) LPA PA Notes Notes for completing a Property and Affairs LPA (12 pages)

Guide to LPA Forms and Guidance – cont… OPG 506 CoP and OPG: Fees, exemptions and remissions (19 pages, updated Guidance for people who want to make a LPA for Health and Welfare (44 page – whole pack) Health and Welfare LPA form (13 pages) OPG 503 Service Standards (16 pages) OPG 506A Application for fee exemption or remission (2 pages)

Contacting the Office of the Public Guardian Office of the Public Guardian, Archway Tower, 2 Junction Road, London, N19 5SZ Telephone: Website: The OPG only provides advice about processes and cannot provide legal advice or services. If necessary, and appropriate, the OPG suggests that you seek independent legal advice.