Powers Of Attorney

You may have heard the term ‘enduring powers of attorney’ (EPA). They were replaced by lasting powers of attorney (LPAs) on October 1 2007. LPAs are more flexible than EPAs. But EPAs signed before October 1 2007 remain valid in law so long as they are registered with the Office of the Public Guardian.

There are two types of Lasting Power of Attorney (LPA):

• Property and Financial Affairs LPA
• Health and Welfare LPA.

You may need both. Don’t make the mistake of getting just one type…then discovering that your family can’t make decisions about your medical treatment because the LPA is the property and financial type. Or they can’t make decisions about your finances because the LPA is the health and welfare type.

It may be hard to imagine a time in the future when you may be unable to make clear decisions about your finances or healthcare. But LPAs can prove invaluable should this happen. They can give peace of mind.

Mental capacity is the ability to make decisions for yourself. A person is judged to lack mental capacity if they cannot do one of the following:

• understand information given to them
• retain it long enough to make a decision
• weigh up available information to come to a decision
• communicate their decision – by talking, sign language, even blinking an eye or squeezing a hand.

Before anyone can take decisions on someone’s behalf, they must have a reasonable belief that the person concerned is no longer capable of making those decisions.

The key legislation governing this is the Mental Capacity Act 2005 – or ‘MCA’ – which is designed to prevent vulnerable people from falling victim to fraud or abuse. It strengthens the right of people to make their own decisions about matters that affect them.

Fundamental to this is the key principle that people should be supported to make as many decisions for themselves as possible. Any decisions made on behalf of the person should always be in their best interests.

The 2005 Act also helps to resolve disputes over whether a person has mental capacity or not.

It is accompanied by a code of practice that contains guidance for professionals such as GPs, hospital doctors, social services and carers. Our solicitors advise professionals to help them comply with the code.

If there is any doubt about whether or not someone has mental capacity there will be an assessment by a clinical neuropsychologist or another specialist such as a geriatrician or a psychiatrist.

It is important to note that just because someone makes flamboyant, eccentric or poor decisions, this is not necessarily an indication of reduced mental capacity.

The Court of Protection exists to help safeguard the rights of individuals who are losing or have lost the ability to take important decisions.

Coles Miller’s specialist Court of Protection solicitors help people to defend their right to decide important health and financial matters for themselves. They also help families seeking to protect loved ones who have problems with mental capacity.

Deprivation of Liberty Safeguards (part of the 2005 MCA) were set up to ensure that people in care homes, hospitals and sheltered accommodation are not confined inappropriately with restrictions on their freedom.

These safeguards apply to anyone who is aged 18+, has a mental condition, lacks mental capacity and is in a hospital, care home or supported living accommodation. They stipulate that those providing care must do so in the least restrictive way possible.

Do you have concerns about how a loved one is being cared for? Are they being deprived of their freedom? Contact our solicitors for more advice.

Applications to challenge or revoke a power of attorney or discharge a deputyship are on the increase.

Ever more complex family structures and the pressures of modern life are resulting in more arguments among relatives about the care of loved ones and the managing of their finances.

As a result, more people are challenging powers of attorney and deputyship orders amid concerns about how decisions are being taken on behalf of people with reduced mental capacity.

Also, some people who have set up powers of attorney (‘donors’) are changing their minds about who should take decisions for them should they lose mental capacity – and they want to revoke the powers.

You may be concerned that an appointed attorney or deputy is making bad or reckless decisions on behalf of the donor – or worse, behaving dishonestly.

Perhaps an unscrupulous appointee is taking advantage of the donor by plundering their bank and savings accounts or deliberately ignoring their urgent healthcare needs.

In other scenarios, the nominated person may be acting in good faith and doing their best but simply may not be up to the job – and the donor is suffering as a result.

You may also wish to take further legal action against the attorneys or deputies to recover missing funds on behalf of the donor. 

Sometimes donors fall out with the person they nominated to be their attorney. Or they may decide that someone else could do the job better.

Whatever the circumstances, the process does not need to be complicated – as long as the donor still has mental capacity.

One of the biggest issues in cases involving the revocation of a power of attorney is the mental capacity of the donor.

If the donor has now lost mental capacity they may not see or understand what is happening to them. They may not realise that their trust in a nominated individual has been misplaced.

In some cases, the donor may have ‘good days’ and ‘bad days’ mentally. They may have a better grasp of reality on some days than on others.

They may still believe that they have mental capacity – even when the sad truth is that they may not, or that this capacity is limited or sporadic.

Our experienced solicitors can help you to discuss difficulties such as these and the best ways to revolve them.