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Losing Mental Capacity With
and Without an LPA

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IN THIS BLOG

What is a Lasting Power of Attorney LPA? 

A Lasting Power of Attorney (LPA) is a legally binding document that allows someone you trust to make decisions on your behalf. You can appoint anyone as your LPA, it might be a close family member or friend. The person you appoint is called your “attorney”. The attorney has a big responsibility because they have the authority to make decisions on your behalf either when you have mental capacity or if you should lose the mental capacity to do so in the future. 

Lasting Powers of Attorney were created through the Mental Capacity Act 2005. There are two types of LPA, ones that cover decisions about your health and well-being and ones for financial and property matters. But there is nothing stopping you from having both at the same time.

Who Decides if You Have Lost Mental Capacity? 

The Court of Protection ultimately decides if you have lost mental capacity or not. The court will need to see a person’s medical records and have proof that a medical assessment has been completed that concludes that they lack mental capacity. People who lack mental capacity could be anyone with a learning disability, a brain injury, dementia, a mental illness, or who has had a stroke.  

Anyone can question a person’s mental capacity, they are legally known as an “assessor.” An assessor can be family members, care workers, social workers, medical professionals, or anyone who has contact with an individual and notices gaps in their ability to make decisions. If a partner, family member, or friend believes that their loved one lacks mental capacity, they can ask a doctor or other medical professional to assess their mental capacity according to the Mental Capacity Act code of practice. 

What Are the Two Stages of Mental Capacity Assessment? 

When mental capacity is measured, the Mental Capacity Act 2005 two-stage test is used. It asks two fundamental questions: 

1) Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use? 

2) Does the impairment mean the person is unable to make a specific decision when they need to?

In some cases, mental capacity is not so clear cut as sometimes people are able to make some decisions and at other points, they aren’t. So, medical professionals will look at whether on a balance of probabilities, the person lacks the mental capacity to make general choices. According to the Mental Capacity Act, people are not able to make their own decisions if they can’t comprehend the information they need to make decisions and they can’t retain or weigh up the information to come to an appropriate decision.

What Are the Consequences of Not Having A Power of Attorney in the UK?

Not having a power of attorney in place in the UK can be costly and time-consuming. For example, if you lose your mental capacity before making a Lasting Power of Attorney you will no longer be able to choose who will make decisions for you. This is because you can only make an LPA while you still have mental capacity. Mental capacity is when you have the ability to understand and make decisions for yourself.

As a result, if you do not have an LPA, your friends or family may have to go through costly court applications to become a deputy and manage your affairs for you. There is an annual fee as well as reporting requirements for someone who is appointed as a deputy. 

If your family or friends apply for deputyship and are refused, people you do not know may end up making important health and welfare decisions on your behalf such as a solicitor, social worker, or other professional appointed by the Court of Protection. This includes decisions about where you live, what food you eat, or even whether you’re given medical treatment to keep you alive.

What Happens if You Lose Mental Capacity With an LPA?

If you lose mental capacity with an LPA in place, the people you have nominated as your attorneys will have the legal authority to make decisions on your behalf. If you have a financial and property LPA, they’ll decide things like whether or not to sell your property. If you have a health and welfare LPA, they’ll make decisions about where you’ll live, what medical treatment you’ll receive, and your daily routine. 

However, your attorney still has to involve you in the decision-making processes as much as possible even after you lose mental capacity. You can include specific instructions about the kinds of financial or health decisions your attorney can or cannot make on your behalf in the LPA. In any case, the law requires your attorney to make decisions that are in good faith and in your best interests. This means that when they make decisions, they’ll have to consider what is best for you and what you would have wanted based on their knowledge of you and your past decisions. 

What Are the Risks of Having an LPA?

When you have an LPA in place, you are letting someone have access to your finances and giving them the power to make crucial decisions about your health, lifestyle, and personal finances and assets. 

 

Although you will choose an attorney that you trust, having an LPA also brings risks. You must remember that someone can abuse their position as an attorney either intentionally or unintentionally. They can neglect their role by not making decisions in your best interests, and in the worst cases, they could commit crimes like stealing your money or moving property into their own name. If you suspect an attorney is abusing their power, you should notify the Office of Public Guardian. 

Who Makes Decisions if There Is No Lasting Power of Attorney?

If there is no Lasting Power of Attorney in place and you lose mental capacity, meaning you lack the ability to make certain decisions for yourself, you will need to apply to the Court of Protection. Many people think that their spouse, partner, or children will have an automatic right to make decisions for them if they lose mental capacity, but this is a common misconception.

The Court of Protection will decide if you have the mental capacity to make decisions. If they decide that you are lacking mental capacity, they will appoint someone as a deputy to make decisions on your behalf. This is because you cannot appoint an attorney yourself once you lose mental capacity. 

If there is no one to make decisions on your behalf, an independent mental capacity advocate (IMCA) may need to be appointed. An IMCA is usually instructed by your health providers, local council, or social worker to protect your rights.

There are two types of deputy, one appointed to manage your property and financial affairs, and one to make decisions about your health and welfare. A deputy’s role is similar to that of an attorney, but their powers are limited compared to someone appointed with Lasting Powers of Attorney. This is mainly because deputies are supervised by the Court of Protection, whereas attorneys will only be investigated by the Court of Protection if there are concerns about their actions. 

Can You Get a Lasting Power of Attorney if You Have No Capacity?

No, if you lose mental capacity you will no longer be able to get a Lasting Power of Attorney and  appoint someone as your attorney. By law, no one has the automatic right to manage your affairs, including your spouse or partner. A trusted person, family member, or friend will have to make an application to the Court of Protection to become a deputy and make decisions on your behalf.

What Decisions Can the Court of Protection Make?

The Court of Protection can make decisions on your behalf that cover your finances and property, as well as health and welfare. The court is responsible for deciding whether someone has the mental capacity to make decisions for themselves or not. Cases brought before the Court of Protection are considered by mostly district and senior judges but can sometimes be heard by High Court judges. 

The Court of Protection can also grant permission for a person to make one-off and ongoing decisions on behalf of someone who lacks mental capacity. It can also decide who gets Lasting Power of Attorney or if an emergency decision has to be made on behalf of someone else.

The court’s role is to ensure that a deputy or attorney is not abusing their position by neglecting their role, committing fraud or theft, and not putting too much pressure on anyone. The court also considers applications to object or cancel a Lasting Power of Attorney. 

When Should You Go to the Court of Protection?

If you or a loved one has lost mental capacity and there is no power of attorney in place, you should go to the Court of Protection. You can also go to the Court of Protection to report concerns about an attorney or object to the registration of a Lasting Power of Attorney.

What is the Role of a Deputy? 

Deputies are responsible for helping people who lack the mental capacity to make decisions about their health, welfare, finances, and property. Deupties will therefore need to have the necessary skills to do certain tasks like keeping financial records and filing taxes for instance. Deputies will need to make decisions that are in the best interests of the individual. This may involve contacting organisations or other professionals such as doctors, local authorities, solicitors, or accountants to get further information to aid them in making crucial decisions. The decisions that they do make must be written up in an annual report and given to the Court of Protection. 

Although deputies can make decisions on someone’s behalf, they must help people to reach decisions themselves. This could involve choosing the best time to approach them when they’re most responsive, using pictures or sign language to gauge their thoughts, getting the views of their family members, and looking at their past choices. 

Deputies may also be responsible for ensuring an individual’s quality of life is positive and in their best interests. For instance, this could mean taking them to the hairdresser, buying new clothes or other items providing this is what the individual wants and funds are being spent in line with what they can afford.