Mental Capacity Note: LPAs, deputies and DoLS
English and Welsh Law concerning the ability of someone 16 or over to make valid decisions is governed by the Mental Capacity Act 2005
The Code of Practice to Mental Capacity Act 2005 is an excellent statutory guide to the Act and has chapters concerning the appointment of a Lasting Power of Attorney (LPA) [chapter 7] and Deputies [chapter 8].
The presumption of capacity
The general rule is that all persons aged 16 or over are assumed to have the necessary mental capacity to make decisions. However, if there is sufficient evidence to rebut this presumption in relation to a specific matter (sections 2 & 3 of the Act and chapter 4 of the Code), then the law requires that decisions be made in their ‘best interests’.
Section 4 of the Act and chapter 5 of the Code describe the way it is decided what is in a person’s best interests. This requires that the relevant decision maker (family member, doctor, dentist, social worker etc) should (among other things) consult anyone involved in caring for the person or interested in their welfare.
Best interests decisions can cover a wide range of issues – including the disclosure of confidential information. The General Medical Council has, for example, issued guidance to GPs that advises that if ‘a patient lacks capacity to make the decision, it is reasonable to assume the patient would want those closest to them to be kept informed of their general condition and prognosis, unless they indicate (or have previously indicated) otherwise’.
Lasting Powers of Attorney (LPA)
A Lasting Power of Attorney (LPA) can only be made by a person when they have sufficient mental capacity to do this. This means that they have a basic understanding of the nature and effect of the LPA. In the key court case [Re K (Enduring Powers of Attorney) (1988)] the judge held that there was no logical reason why a person who understood that something needed to be done, but who lacked the requisite understanding to do it personally, should not confer on another the power to do what needs to be done. Accordingly, a person may have insufficient mental capacity to manage their financial affairs, but have sufficient mental capacity to delegate this function to an attorney. In the judge’s opinion, what was required was that the person making the attorney ‘understood the nature and effect of the power’. This did not mean that she had to be ‘able to pass an examination on the provisions of the Act’.
If the person has this basic understanding, then they can make an LPA. You can get the forms via the internet from the Public Guardian’s Office by clicking here. You don’t need to have a lawyer for this (it is about as complicated as applying for a passport). The form has to be countersigned by a third party of some ‘standing’ to confirm various things (as with a passport).
There are two types of LPA – one that concerns making financial decisions (including decisions about property etc) and one concerning personal welfare matters.
When using their powers, LPAs must always act in the best interests of the person to whom the power relates.
If a person lacks the necessary mental capacity to make an LPA – and it is important that a decision be made on their behalf – it may be necessary to apply to the Court of Protection to be appointed their deputy. Deputies can have wide powers but generally these are limited to making financial / property decisions.
As with LPAs, it is not essential to have a lawyer to make this application – the forms can be downloaded from the Public Guardian’s Office by clicking here. There are more forms to be completed for a deputyship application – but they are all fairly straight forward.
Since deputies must act in a person’s best interests and since this requires that when deciding how to use their powers they must consult (among others) anyone involved in caring for the person or interested in their welfare (ie family members, the local authority, the NHS etc)– the courts have historically been reluctant to give deputies powers to make personal welfare decisions (as opposed to financial decisions). Although this may change as a result of a 2019 judgment, it is something to be borne in mind. Nevertheless, it is not infrequently said by families that having personal welfare powers as a deputy is valuable – largely for symbolic reasons. Some family members consider that public bodies treat their views with greater respect when they have an official document naming them as having these powers – a form of ‘credentialism’.
Deprivation of Liberty Safeguards (DOLS)
The law requires that where a person: (1) is under continuous supervision and control; and (2) is not free to leave; and (3) lacks capacity to consent to these arrangements then they are legally ‘deprived of their liberty’ and this situation has to be legally validated. Discussion of DOLS is outside the scope of this note – but the Alzheimer’s Society has a useful overview Guide to Deprivation of Liberty Safeguards (DoLS) which can be accessed by clicking here.