Caremark Thurrock Supports Families to Understand Power of Attorney and Mental Capacity

Navigating decisions about health, finances, and well-being can be challenging, especially as we age. For many older people, the concept of “mental capacity” and the need for a Power of Attorney (PoA) becomes increasingly important. This article explains what Power of Attorney is, why it matters, and how it ensures that individuals’ wishes are respected. It focuses on situations where they can no longer make decisions for themselves.

What is Mental Capacity?

Mental capacity refers to an individual’s ability to make decisions for themselves. This includes understanding the information relevant to the decision, weighing up options, and communicating their choice. Mental capacity can be affected by various factors, including dementia, stroke, learning disabilities, or brain injuries.

In the UK, the Mental Capacity Act 2005 protects people who may lack capacity. It outlines the framework for assessing capacity and acting in their best interests. Additionally, it emphasises that individuals should be supported to make their own decisions wherever possible.

Why is Power of Attorney Important?

A Power of Attorney is a legal document that enables a trusted person (the “attorney”) to make decisions on behalf of another individual (the “donor”) if they lose mental capacity. This ensures that a person’s wishes regarding their health, welfare, and finances are followed. This applies even if they are no longer able to communicate or make decisions independently.

Without a Power of Attorney in place, families and care assistants may face significant challenges. This is when trying to manage the affairs of someone who lacks mental capacity. In such cases, the Court of Protection may need to appoint a deputy. This can be a time-consuming and costly process.

Types of Power of Attorney

There are two main types of Power of Attorney in England and Wales:

Lasting Power of Attorney (LPA):
- Health and Welfare LPA: This allows the attorney to make decisions about the donor’s medical care, living arrangements, and day-to-day welfare. The LPA applies only if the donor loses mental capacity.
- Property and Financial Affairs LPA: This permits the attorney to manage the donor’s bank accounts, pay bills, and even sell property. This applies both while the donor has mental capacity (if they consent) and when they lack it.
General Power of Attorney: This is a temporary arrangement, often used for financial matters. It becomes invalid if the donor loses mental capacity.

How to Set Up a Power of Attorney

Creating a Power of Attorney requires careful thought and legal documentation. Here are the key steps:

Choose your attorney(s):
Select someone you trust, such as a family member, friend, or professional. It is important that they understand your wishes and are capable of acting in your best interests.
Complete the forms:
The forms for creating an LPA are available online through the UK government website. They include the LPA for Health and Welfare and the LPA for Property and Financial Affairs.
Certify your mental capacity:
A certificate provider (such as a doctor or someone who has known you for at least two years) must confirm that you understand the implications of the PoA. They must also confirm you are not being coerced into making the arrangement.
Register the PoA:
To make the LPA legally binding, you must register it with the Office of the Public Guardian (OPG). This process usually takes up to 20 weeks and costs £82 per LPA.

Supporting Mental Capacity and Decision-Making

Before assuming that someone lacks mental capacity, it’s essential to provide support to help them make decisions. This could involve:

Using clear and simple language.
Providing information in a format they understand, such as visual aids.
Allowing extra time for decision-making.
Seeking input from care assistants or professionals familiar with the person’s communication needs.

What Happens Without a Power of Attorney?

If no Power of Attorney is in place and someone loses mental capacity, their loved ones must apply to the Court of Protection to become a deputy. This process can take months and is significantly more expensive than setting up an LPA. It also leaves families in a vulnerable position, unable to access funds or make important decisions during the interim.

FAQs About Power of Attorney and Mental Capacity

What does mental capacity mean?

Mental capacity refers to the ability to make your own decisions. It includes understanding, reasoning, and communicating choices.

Who can act as my attorney?

Anyone you trust can act as your attorney, such as a family member, friend, or professional. They must be over 18 and capable of managing the responsibilities.

Do I need a solicitor to set up a Power of Attorney?

No, you don’t need a solicitor to create an LPA, but some people choose to seek legal advice to ensure the forms are completed correctly.

Can I change or cancel a Power of Attorney?

Yes, as long as you have mental capacity, you can change or cancel an LPA at any time by informing the OPG.

Does having a Power of Attorney mean I lose control?

No. While you have mental capacity, you remain in full control. Your attorney can only step in when you can no longer make decisions.

What happens if I don’t have a Power of Attorney?

If you lose mental capacity without a PoA, your family must apply to the Court of Protection to make decisions on your behalf. This process can be time-consuming and costly.

By planning ahead with a Power of Attorney, you can ensure that your wishes are respected and your affairs are handled with care. For older people and their families, it provides peace of mind. This is knowing that, even if mental capacity is lost, decisions will reflect your values and preferences.