By solicitor Nicola Hawkins (pictured), and associate Nicola Turner at Irwin Mitchell
Today is Carers Rights Day and this year’s theme is “Know your Rights”. As a carer, it is important that you know what you can and equally importantly, what you can’t do, especially if caring for someone who has fluctuating capacity.
Under the Mental Capacity Act 2005, everyone over the age of 16 is presumed to have capacity unless it is proven otherwise. Capacity is time and decision specific. For example, you cannot assume that the person you are caring for lacks capacity to manage a current account simply because they could not make a decision about a larger financial transaction, for example selling a property. You also cannot assume that they lack capacity this week because they didn’t have capacity last week. Loss of capacity can be temporary and can be caused by illnesses such as infections or short term trauma so can be quickly recovered.
You must ensure you support the person you are caring for to make their own decisions where they are able to do so. This could be altering the way the decision is communicated to them, for example using picture symbols instead of words or breaking the decision down into a series of questions. You must always act in the person’s best interests. You cannot put your own needs and wishes above those of the person you care for and this is so important.
If the person you are caring for has lost capacity and there is no legal documentation in place then you will not have the authority to manage any of their affairs on their behalf. There is a common misconception that a spouse has authority to deal with the other’s affairs but this is not the case. There is also a common misconception that a parent can continue to manage a child’s affairs once the child is 18. Without an appropriate legal authority you will not be able to make any financial decisions for them, including paying bills, managing bank accounts, selling property and managing investments. You will also not be able to make medical decisions on their behalf.
It is therefore vital that the correct legal documentation is put in place. If the person you are caring for is able to do so, they should execute both types of Lasting Power of Attorney (LPA), one for property and financial affairs and the other for health and welfare. By signing both types, it ensure the chosen attorneys can assist in all aspects of their life. To make an LPA, the person making the LPA must be able to show they understand what an LPA is, who they are appointing and why, the types of activities the attorneys can undertake for them, the consequences of not having an LPA and how this can be revoked. A diagnosis of a mental health illness or memory loss does not automatically mean an LPA cannot be made. We have seen many clients who have been diagnosed with dementia but have still been able to make an LPA.
It is recommended that you take legal advice on the LPAs. The LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used. The OPG will reject the registration if there are any errors, resulting in the LPAs needing to be prepared and signed again. If there is one ”i” not dotted, too many restrictions placed on the attorneys’ authority or if the signatories have not signed the LPAs in the correct order, this can result in rejection and consequently, delay. We have also seen cases where lay people make the LPA and only one attorney is appointed, which causes difficulties with joint assets or if the attorney is unable to act. Therefore, taking advice on the role of attorney, how many should be appointed and when they can act is extremely important.
If the person you are caring for does not have an LPA in place and does not have capacity to make an LPA then you should apply to the Court of Protection for a deputyship order.
Once appointed as an attorney or a deputy, it is vital that you keep full records of all decisions made on their behalf and evidence where you have involved the person themselves in making that decision. You must keep full accounting records of all financial transactions undertaken.
It is important to note that as an attorney or a deputy, you do not have automatic authority to access details of the person’s will. This authority must be granted by the LPA itself or by the Court of Protection. You are also unable to make a will on their behalf. If changes are needed to the distribution of their estate either under the intestacy rules or under an existing will you will need to make an application to the Court of Protection for a statutory will.
It is important to remember that as an attorney or a deputy you can, and probably should, take advice from legal and financial professionals when managing another’s affairs.