Acting as an attorney or deputy

Welcome

The Care team at Moore & Tibbits has produced this guide for new Attorneys and Deputies to provide an introduction to your legal duties under the Mental Capacity Act 2005 and the supporting Code of Practice.

As an Attorney or Deputy you have ongoing responsibilities and duties, which includes a legal obligation to “have regard for” the Code of Practice when performing your duties. This means you should have an awareness of the content of the Code, and how to apply it to the role you are undertaking.

We have summarised the key aspects of the Code of Practice that affect your role and highlighted when you should take them into account. However, we appreciate that you may at times feel daunted by the responsibility, or simply want an answer to a quick question. Either way, please do not hesitate to contact a member of our Care team, who will be happy to help.

The Law

The Mental Capacity Act 2005 (“the Act”) sets out the law in relation to acting and making decisions on behalf of individuals who lack the mental capacity to make a particular decision for themselves.

The Mental Capacity Act supporting Code of Practice (“the Code”) was introduced in 2007 to provide practical guidance for those involved with incapacitated adults, including Deputies and Attorneys.

Essential information for Attorneys AND Deputies

The five statutory principles Both the Act and the Code are supported by five statutory principles and you should bear these in mind in any decisions that you make in your role:

1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose can be achieved in a way that is less restrictive of the person’s rights and freedom of action.

What is ‘mental capacity’?

The Mental Capacity Act defines a person who lacks mental capacity as someone unable to make a decision for themselves because of an impairment or disturbance of the mind or brain.

However, it is important to emphasize that whether someone does or does not have ‘capacity’ is not fixed. Under the Act and the Code, capacity is clearly linked to an individual’s ability to make a particular decision at a particular time, and this is something that as Attorney or Deputy you should always consider.

An individual is deemed to lack capacity to make a particular decision where they are unable to:

• Understand the information relevant to the decision, including the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision
• Retain that information
• Use or weigh that information as part of the process of making the decision, or
• Communicate their decision (by any means)

What is a best interest decision?

This is a decision made on behalf of someone who lacks mental capacity to decide the particular issue themselves.

The more significant the decision is, the more emphasis is placed on taking careful and considered steps to reach the final decision. People involved in the care and welfare of the individual should be asked to contribute their views, but the final decision is taken by one person who is referred to as the decision maker.

The best interest decision must be taken in accordance with the statutory principles. In addition to these principles, section 4 of the Mental Capacity Act requires the decision maker to:

• consider all the relevant circumstances
• encourage the individual to participate in making the decision as far as they are able
• consider delaying the decision if the individual is likely to regain capacity to make the decision
• take account of the individual’s past and present wishes, feelings, beliefs and values
• consider the views of other people close to the individual, or nominated by the individual to be consulted

Any decision made should not:

• be based on assumptions about an individual’s appearance, health condition or behaviour OR
• be a decision based on ‘substituted judgement’, where you make a decision based on what you think the individual would have done if they had capacity – their views are considered, as one of many factors listed above

As an Attorney or Deputy, you should follow the principles and the above guidance to ensure that you take a balanced approach to decision making. This means recognising when the individual you act for may have capacity to make a decision, and enabling them to do so. It also means stepping in to make decisions where the 5 individual does lack capacity. This will depend on the nature of the decision and reflects the fact that an individual may be able to make many everyday decisions whilst requiring an Attorney or Deputy to step in for support regarding more complex matters.

Am I, as Attorney or Deputy the decision maker?

This depends on what authority you have been given in the Lasting Power of Attorney (LPA) or Court Order (if a Deputy) and in the first instance you should refer to this. If you do not have the authority you should still be consulted and involved in any best interest decision taken.

There are additional factors to consider when making decisions about life sustaining treatment where you are an Attorney under a Health and Welfare Lasting Power of Attorney. You should refer to the Code of Practice for further, detailed guidance or contact a member of the team for advice.

How should I use the Lasting Power of Attorney (LPA)?

An Attorney has the following duties imposed by the Mental Capacity Act and must:

• Follow the statutory principles
• Make decisions in the individual’s best interests
• Have regard to the guidance in the Code

   

• Only make those decisions that the LPA gives them authority to make

It is important to remember that a Health and Welfare Lasting Power of Attorney cannot be used when an individual still has capacity, whereas a Property and Financial Affairs Lasting Power of Attorney can, unless it is otherwise stated in the Lasting Power of Attorney.

As an Attorney you should abide by any conditions or restrictions in the Lasting Power of Attorney document itself, which may contain specific instructions made by the individual at the time the Lasting Power of Attorney was drawn up.

An Attorney has further legal duties to the individual which reflects the responsibility and trustworthiness of the role. The overriding duty is to act with a standard of skill and care that is appropriate to their role. An unpaid Attorney must act with the same care, skill and diligence as they would when making decisions about their own life. The standard for professional or paid attorneys is higher still.

As an Attorney you must also ensure that you:

• Carry out the individual’s instructions
• Do NOT take advantage of the role of attorney to benefit themselves
• Do not delegate decisions, unless authorised to do so
• Act with honesty and integrity (in good faith)
• Keep the individual’s affairs confidential
• Comply with the directions of the Court of Protection
• Do not give up the role as attorney without telling both the individual and the Court

In addition there are specific duties in relation to Property and Financial Affairs.

Attorneys must:

• Keep accounting records of income and expenses
• Keep the individual’s money and property separate from their own

Any concerns about an abuse of position by an Attorney, or abuse of the individual MUST be reported to the Office of the Public Guardian.

Acting as a Court Appointed Deputy

Deputies are usually appointed to manage an individual’s financial affairs. In some circumstances they can be appointed for personal welfare decisions, but this is unusual, and only used as an option when the best interest decision making process has been unsuccessful, due for example to a dispute.

As a Deputy, you are accountable to the Office of the Public Guardian who are responsible for supervising your role. On the order of appointment you have received, the court will have set 7 out the extent of your powers and the authority that you have.

As a Deputy, you are under a responsibility to ensure that you act with a high standard of care when fulfilling your duties, and always ensure that you:

• Have regard to the Code of Practice, including the five statutory principles
• Make decisions in the person’s best interests
• ONLY make decisions that are authorised by the Court order

There are some circumstances governed by law, where you, acting as Deputy, have no authority to make decisions:

• if you think the person has the capacity to make a particular decision for themselves
• if your decision would go against a decision made by an Attorney acting under a Lasting Power of Attorney granted by the person before they lost capacity
• to refuse the provision or continuation of life sustaining treatment - these decisions must be taken by the court
• in regard to anything intended to restrain the person who lacks capacity

Each year you must:

• submit an accounting report to the Office of the Public Guardian
• take out relevant insurance (called a bond)

As Deputy you should keep your affairs entirely separate from the individual you are Deputy for. You should open a separate bank account and keep receipts and accounting information. You may receive a visit from a ‘visiting officer’ who will check how you are fulfilling your duties as Deputy.

And finally

Our care team can support and advise you in all aspects of Lasting Powers of Attorney, Deputyship and best interests. Our support does not stop once you have been appointed. We recognise that there are many instances when it is useful for you to seek reassurance and advice, so please do not hesitate to contact us.

Legal Meaning

These are some of the words and terms you may encounter:

Attorney

A person appointed under a Lasting Power of Attorney. An Attorney has the legal right to make decisions on behalf of the Donor as long as those decisions are within the scope of their authority.

Court Appointed Deputy

A person appointed by the Court of Protection. A Deputy has the legal authority to make decisions about personal welfare and/or property and financial affairs.

Court of Protection

The Court of Protection is a specialist court for all issues relating to people who lack capacity to make specific decisions.

Office of the Public Guardian

The Office of the Public Guardian is a Government department sponsored by the Ministry of Justice. It is responsible for supervising and keeping registers of Deputies, Lasting Powers of Attorney and Enduring Powers of Attorney and investigating complaints about Deputies and Attorneys.

Best Interest Decision Maker

A decision maker is a person who is responsible for deciding what is in the best interests of a person who lacks capacity.

Best Interest Decisions

Any act done or decision made on behalf of a person who lacks capacity must be done or made in their best interests.

To find out more or to book an appointment for your free initial consultation, do not hesitate to contact a member of our team or call us on 01926 491181.