This week is Carers Week, which is an annual campaign dedicated to raise awareness of the role carers provide. It’s important that a carer knows what decisions they can and can’t make for the individual they are caring for. This is particularly important where the person’s capacity fluctuates, as the carer must ensure they have the correct legal documentation in place to make decisions on the person’s behalf.
Under the Mental Capacity Act 2005, everyone over the age of 16 is presumed to have capacity unless it is proven otherwise. Even if the person you’re caring for has a Power of Attorney in place (see below) you must ensure they make their own decisions where they are capable of doing so. It is important to note that capacity must be assessed for each decision and at the time the decision is made.
For example, you cannot assume that the person you are caring for lacks capacity this week because they didn’t have capacity last week. Loss of capacity can be temporary and can be caused by short term illnesses for example a chest infection so can be quickly recovered.
A person shouldn’t be prevented from making a decision simply because they cannot verbally communicate this. You can’t assume they don’t have capacity simply because their communication is limited. If someone struggles with their speech, you could ask them to write their decisions down. If they’re unable to do this then you could use word boards and picture symbols for them to point to.
If someone doesn’t understand the question initially then you should try asking the question in a different way, ensuring you use plain English and avoid any legal or technical words. However you should avoid using questions that can be answered with a simple yes or no, as these questions don’t give opportunity for the person to show their understanding.
If the person you’re 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. This includes including paying bills, managing bank accounts, selling property and managing investments. There is a common misconception that a spouse has authority to deal with the other’s affairs. Another common misconception is that a parent can continue to manage a child’s affairs once the child is 18.
A third party mandate at the bank giving you the ability to access their account is only valid whilst they have capacity. This therefore shouldn’t be relied upon to manage their affairs.
Any Enduring Power of Attorney (EPA) made prior to October 2007 remains a valid document and can still be used by the attorneys. It was common for EPA’s to include a restriction saying the EPA could only be used if the person making the EPA (the donor) has lost capacity.
This means the attorneys cannot use the EPA if capacity fluctuates or if the donor is unable to deal with matters themselves, for example signing documents, due to a physical illness. In those circumstances the donor should revoke the EPA and make a Lasting Power of Attorney (LPA).
If the donor is losing or has lost capacity the EPA must be registered with the Office of the Public Guardian (OPG). We’ve seen examples where this registration requirement isn’t complied with. Often EPAs are used by the attorneys to deal with day to day affairs.
When the attorneys try to sell the property, advising the conveyancer that the donor has lost capacity, the conveyancer advises the EPA needs to be registered. The registration of the EPA can cause a delay to the sale completing and can result in the buyer withdrawing from the transaction.
Since 2007, to appoint attorneys, a donor has had to sign an LPA. LPAs must be registered with the OPG before they can be used by the attorneys.
If the person you are caring for doesn’t have a power of attorney in place then they should execute both types of LPAs, one for property and financial affairs and the other for health and welfare. By signing both types, it ensures the chosen attorneys can assist in all aspects of their life.
For an LPA to be valid, the person making the LPA must be able to demonstrate to the person acting as the certificate provider (the person signing to say the donor has capacity to make the LPA) that 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 doesn’t automatically mean an LPA cannot be made, but it is advisable to speak to a professional to ensure the donor can make the LPA in those circumstances.
Taking advice on the role of attorney, how many should be appointed and when they can act is extremely important. We’ve 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.
If the person you are caring for doesn’t have an EPA or LPA in place and doesn’t have capacity to make a LPA then you should apply to the Court of Protection for a deputyship order. A deputyship order will give you the authority to manage their financial affairs on their behalf.
Once appointed as an attorney or a deputy, it’s 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 ensure you keep full accounting records of all financial transactions undertaken. It is also vital that you keep your own affairs separate from theirs. You mustn’t benefit from your position as an attorney or deputy.