What is a lasting power of attorney and what does it do?

A Lasting Power of Attorney is a legal document, which allows you to appoint someone that you trust as an ‘attorney’ to make decisions on your behalf. These decisions can be about your welfare, your money or your property. Attorneys can make decisions for you when you no longer wish to or when you lack the mental capacity to do so. A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian.

Who decides what ‘lacking mental capacity’ means?

Someone can lack mental capacity if they have an injury, disorder or condition that affects the way their mind works. This could mean they have difficulty making decisions all of the time or that it might take them a long time to make a decision. The assessment of someone’s mental capacity should only be made at the time a particular decision needs to be made.

Any assessment should start with the assumption that the person has the capacity to make the decision in question. It should never be based on simply their age or appearance, nor on an assumption about their condition or any aspect of their behaviour. A solicitor can decide if someone is capable of making decisions or understanding things such as a will or a Lasting Power of Attorney. If in doubt, they can get an opinion from a doctor or another appropriate professional. The Court of Protection has power to decide whether someone has mental capacity or not if there is a disagreement.

Determining who is capable of making a decision

The Mental Capacity Act Code of Practice, 2005, gives detailed guidance on how to assess someone’s ability to make decisions, but generally the sort of things that should be taken into consideration when assessing the ability to make decisions are:

• if the person understands what decision they need to make and why they need to make it
• if the person understands what might happen if they do or do not make this decision
• if the person can understand and weigh up the information relevant to this decision
• if the person can communicate their decision (by talking, using sign language or any other means)
• if the person can communicate with help from a professional (such as a speech and language therapist)
• if there is a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)

It’s vitally important to make the distinction that just because a person makes a decision you don’t agree with, doesn’t mean they are therefore incapable of making a decision.

Making a decision on someone else’s behalf

Any decision you make for someone who lacks capacity must be made in that person’s best interests. When working out what is in someone’s best interests there are some common points that you must always consider:

• all relevant circumstances should be considered
• you should make every effort to encourage and enable the person who lacks capacity to take part in making the decision
• if there is a chance that the person will regain the capacity to make a particular decision in the future
• the person’s past and present wishes and feelings, beliefs and values
• the views of other people who are close to the person lacking capacity, as well as the views of an attorney or deputy

There are two main ways you can make decisions for someone else:

• as someone’s attorney under an Enduring or Lasting Power of Attorney agreement
• being a deputy appointed by the Court of Protection

These are legal arrangements. The roles can’t be fulfilled without agreement from the Court of Protection or the Office of the Public Guardian.

Registering a Lasting power of Attorney

A Lasting Power of Attorney can’t be registered and used immediately, and the amount of time you might have to wait can change. The current waiting time to register a Lasting Power of Attorney is 12 weeks. The Office of the Public Guardian must check the application to make sure there are no problems. There is also a six-week period when people have a chance to object to the Lasting Power of Attorney. An attorney can only use a Lasting Power of Attorney once it has been registered with the Office of the Public Guardian. A health and welfare Lasting Power of Attorney can only be used once the donor (the person needing help) is unable to make their own decisions. A court or a medical professional will help in deciding if someone has lost the mental capacity to make decisions.

You can fill in Lasting Power of Attorney forms for yourself, or if you are helping someone else make a Lasting Power of Attorney. However Lasting Power of Attorney forms can be complicated and you may have to seek professional legal advice, particularly if there are complicated details (such as finances) or specific instructions for the attorneys involved.