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Making it Last
Making it Last One of the key features of the Mental Capacity Act 2005 is that we all have the opportunity to appoint someone as a Lasting Power of Attorney (LPA) to make big decisions about our health and welfare, and finance and property matters, if at sometime in the future we no longer have the capacity to do it ourselves. This is worth knowing about whether you are concerned with the care of service users or whether you are thinking about the future for yourself and your family.
How does it work? Well first imagine a scenario in which someone does not have a Lasting Power of Attorney. If someone no longer has capacity, then decisions may need to be made about where they might live if they need care, or how their house sale will be handled. Now we’d expect family members to do this, but if there are disagreements amongst family members, or perhaps no immediate family around, then it can all start to get very complicated and messy. On the other hand if you appoint someone as an LPA whilst you still have capacity, you can choose someone you trust to make the right choices for you, perhaps your son or daughter to make the health and welfare decisions, and maybe a trusted family solicitor for finance and property decisions. Now the process of appointing someone as an LPA is quite rigorous. There are forms to be completed and signed and witnessed, but if you don’t wish to do it all yourself a solicitor will guide you through the process (at a cost.)
Whilst I’m writing this I’ve just come across a useful guide in getting the best out of a solicitor. It’s produced by the Legal Ombudsman and you can download it from: http://www.legalombudsman.org.uk/downloads/documents/publications/Using-a-lawyer-as-you-get-older-Ten-top-tips.pdf. If you don’t wish to use a solicitor you can complete forms online yourself at the Office of the Public Guardian website: http://www.justice.gov.uk/about/opg.
If you register the LPA with the Office of the Public Guardian as soon as you have completed the application (again more cost! – at the time of writing £130 per LPA) it saves a lot of time later on. Once registered, as soon as someone lacks capacity, then the LPA can start to act on your behalf.
If you’re working with someone who lacks capacity, perhaps a new resident admitted to a care home , it’s clearly very important to know whether the person has appointed an LPA, or LPAs. That’s another important thing to remember, you can have an LPA for finance and property decisions, and another LPA for health and welfare decisions, or you can have the same person doing both. Equally you can have more than person as an LPA for each area of decisions, perhaps you’d want both your son and daughter agreeing decisions for you. If you look at the QCS assessment and care planning pack you’ll see reference to this important question of whether there is an LPA already in place. This will be crucial if, for example, the resident is felt to be in need of medical treatment, then the LPA would need to be brought in to make decisions about that.
The Mental Capacity Act 2005 Code of Practice includes a chapter on what the Act says about Lasting Powers of Attorney. In particular it says that a ‘paid care worker should not agree to act as an attorney’ for one of their residents. The other important thing to note is that all times the LPA should act in the person’s (or to use the Act’s term, the donor’s) best interests, not just what the LPA thinks should happen. Now unfortunately there may be some very rare occasions when an LPA does not act in the person’s best interests or even exploits or abuses them. The Code of Practice describes what a care worker should do if they suspect this, and that is to report it to the Office of the Public Guardian.
Now this legislation is relatively new so perhaps not everyone is aware of the role of Lasting Power of Attorneys. Even where people are aware of this provision, planning for the future is something a lot of us want to put off! The most recent statistics show that nearly 250,000 LPAs have been registered (Office of the Public Guardian Annual Report & Accounts 2012 – 2013). That might sound a lot, but when you consider that there are over 440,000 people aged 90 and over living in England and Wales (Estimates of the Very Old 2002-2011 Office for National Statistics) then there’s a lot of scope for more people to complete an LPA! You might remember a previous term – enduring powers of attorney (EPA), this provision has now disappeared (however if someone was appointed as an EPA a long time ago, they can now act as an LPA). People may lose mental capacity to make decisions for a number of reasons, and those include the symptoms associated with dementia. There’s an excellent new guide produced by the Alzheimer’s Society on dementia. The guide features lots of useful information on types of dementia and help available. It does include one section on planning ahead with some further sources of information about Lasting Powers of Attorney. It can be downloaded from their website at: www.alzheimers.org.uk/dementiaguide.
Everything I’ve described in this article is governed by the law in England and Wales. Scotland has a different and earlier law around adults who lack capacity called Adults with Incapacity (Scotland) Act 2000. It includes similar provision for the appointing of Powers of Attorney. Here they are simply called Powers of Attorney, and similar to England and Wales there are both financial and welfare attorneys. You can get more information about powers of attorney in Scotland by visiting: http://www.publicguardian-scotland.gov.uk/. So if you haven’t appointed an LPA, then you don’t know who might be making decisions for you if you lose capacity, unless you’ve put something in writing such as an Advanced Decision or an advance statement about your wishes. That’s a subject for another article on another day!