15 Nov 2023
There may come a point where a loved one needs you to act as their Attorney under an LPA document, whether this is for property and financial decisions or for health and welfare. This could also be the case if the Court of Protection has appointed you as a Deputy on behalf of somebody that did not set up an LPA whilst they still had capacity. In either case, this leaves you as the decision maker for that person, who must act in their best interests at all times.
This can be easier said than done and you are likely to face some difficult decisions. For example, you may have to consider whether that person can be cared for at home or if they need to move into a care home setting, whether they should receive specific medication, or whether their house should be sold.
The Mental Capacity Act 2005 lays out some guidance and sets various factors that you must consider as an Attorney. It’s important that the Act is considered and followed when making any decisions and an experienced solicitor can help you to understand the obligations you are under.
The first key principle of the Mental Capacity Act 2005 is that that every person has a right to make their own decisions and must be assumed to have capacity unless it is proved otherwise. Whilst capacity can be lost, it can also be regained at a later date, and can even be affected by things such as grief, illness or stress. It is also important to note that decisions that you deem to be “unwise” cannot be used as evidence that capacity has been lost.
Wherever possible, you must encourage and allow the person to participate in their own decision making. With the appropriate support and additional information, a person may well be able to make their own decisions in certain circumstances, even if they cannot in others. For example, whilst they may not be able to decide on what medication they should take, they could decide what they were having to eat for dinner.
If it can be shown that a person does not have capacity, the key things to consider mentioned in the Mental Capacity Act when making a best interests decision include:
If it is likely that the person will regain capacity, then this should be factored into any decisions made and, if appropriate, the decision should be delayed until they have the capacity to make it themselves. This is dependent on the decision to be made, the surrounding circumstances, and the urgency of the decision.
In an ideal situation, when a person appoints you as their Attorney, a conversation between you and them would happen in which you would discuss what they would like to happen in certain situations. However, this is not always possible, and it can be that circumstances change over time which alter what the best decision is, or potentially deals with something that wasn’t previously discussed.
Obviously the most important factor when making a decision is any wishes and feelings of the person whether these be conversed or written, however from previous cases in this area of law, there is some helpful guidance to follow:
It could be the case that you have co-attorneys. In these instances, you should ideally all come to a best interests decision together and unanimously, but the requirement to do this will depend on whether you are appointed ‘jointly’ or ‘jointly and severally’. Despite this, it’s still best if you are acting alone to consider the thoughts of the person’s other loved ones.
When the decision is of a medical nature, it’s important to take on board the advice of the medical professionals involved in the person’s care. Some key questions to ask the medical professionals could include:
Once again, your knowledge of the person’s wishes and beliefs will be important.
You may feel concerned that the correct decision may not be made. In this situation you should request a best interests meeting with medical staff as this can assist you with the decision making process, and help to reduce any pressure you may be feeling.
When a decision is made on somebody else’s behalf, it should be taken carefully and with great consideration of all the relevant factors.
One person’s opinion on a best interests decision may differ from another’s. If you are one of multiple attorneys and you cannot agree on something, the way the LPAs were set up will impact whether the decision can be made without the agreement of the other Attorney(s). If you are appointed ‘jointly and severally’, one may make decisions and authorise actions without the other(s) necessarily agreeing. Practically, this is likely to cause upset, so it’s a good idea to try and seek agreement in the first instance or opt for third party input or mediation.
If you appointed under a Health and Welfare Lasting Power of Attorney, the final decision lies with the attorney(s). However, its important to note that this doesn’t prevent others from contesting your decision if they believe it isn’t in the best interests of the person who you are acting for.
Our team of friendly and experienced Wills, Trusts and Probate lawyers can help you to understand Lasting Powers of Attorney and your responsibilities if you are appointed as one. They are on hand to answer any questions or concerns you may have and can help you navigate your new role.
Alternatively, if you have concerns that another acting attorney hasn’t made a best interests decision, then our team of dispute resolution lawyers can assist you with this and advise on the best course of action to take.
For more information about Lasting Power of Attorneys, please contact our team today.