Lasting Power of Attorney: Understanding the basic difference between a Will and an LPA
Many people do not understand the critical difference between a Will and a Lasting Power of Attorney.
A Lasting Power of Attorney (‘LPA’) enables you (the donor) to appoint a chosen representative (known as your ‘attorney’) to make decisions to meet your needs at a stage when you lack the mental capacity to look after your own health and financial affairs. An LPA gives you peace of mind that your entrusted attorney will be acting in your bests interests at all times and making decisions on your behalf, as if you were making them yourself.
A Will only takes effect after death and confers power to manage your estate and affairs (eg property, assets, savings, investments, jewellery etc) to your appointed Executive(s) to deal with in accordance with your stated wishes and preferences. Without a Will, your estate will be caught by the Intestacy Rules, and all your wealth and assets will be allocated in a predetermined order, possibly passing to some beneficiaries whom you might not have considered appropriate.
An LPA can only be made if you are at least 18 years old and have mental capacity to make it. Given that your attorney will effectively be stepping into your shoes, you should appoint someone whom you trust to look after your health and financial affairs. This is usually a spouse, partner, adult child (also over the age of 18) or professional adviser. You can have up to 4 attorneys. But beware, as often, the more attorneys you have, the harder it can be to reach decisions. If you wish, you can also specify which decisions your attorney can and can’t make.
Indeed, under an LPA you can also specify that you would like your attorney to take control or have some involvement in your health and financial affairs even whilst you still have mental capacity.
You can also appoint replacement attorneys in the event that one of your appointed attorneys dies, loses capacity, or no longer wants to act.
However, without a valid Power of Attorney in place, decision-making may be left to others who do not know you, or your ‘wants’ and preferences. Your preferences may be ignored and whilst decisions should be made in your best interests, that may not necessarily happen. Instead, an application will have to be made to the Court of Protection to appoint a Deputy to take control of any decision-making process on your behalf. That can be expensive, and inevitably there will be delays whilst the application goes through the court process. In the meantime, vital decisions as to your health or finances may be on hold.
If you don’t have a Will or Lasting Power of Attorney in place for your spouse or relative, then we strongly recommend you do so, as soon as possible. Visit our website to see how we can help.
Below is a personal testimony given to us by a client who encountered problems with regards to decision-making, even though her mother had a valid LPA in place. Read her story and learn from her ordeal to prevent this situation from happening to you.
Mental Capacity Act Assessment
“My late mother had LPA for both health and welfare and property and financial affairs. She appointed my husband and me as her attorneys. We were required to have regard to the Mental Capacity Act 2005 (MCA) Code of Practice [1]. People acting in a professional capacity such as doctors, nurses, allied health professionals and social workers are also required to have regard to the Act.
In March 2014 the House of Lords published a report on post legislative scrutiny of the MCA [2]. Paragraph 63 says:
“We were told of a worrying tendency among local authorities to use the presumption of capacity to avoid taking responsibility for a vulnerable person.” and;
“The Law Society referred to the principles of the Act being “applied perversely”, using the presumption of capacity to avoid assessing capacity, “with the implications for associated support and resources.”
My mother developed vascular dementia. We, as her attorneys, were concerned that she had lost the capacity to make some important decisions about care needs and place of residence. We expected her social workers to help us to ensure that she had a proper mental capacity assessment and appropriate support to make decisions. Instead, they repeatedly insisted that my mother had capacity without carrying out proper assessments.
My mother’s social care records show that her local authority social care workers secretly tried to get her LPA revoked in order to avoid dealing with her attorneys, who they knew objected to their attempts to:
- Downplay her care needs
- Obstruct her wish to be able to live at home at the end of her life
- Trick her into believing that she would have to sell her home to pay for her care without assessing whether her care needs exceeded the local authority legal remit and should have been funded by NHS Continuing Healthcare.
What follows are the tactics they used to try to get the LPA revoked. All of this took place behind our backs:
a) In September 2018, according to local authority records, my mother made a comment to a social worker that was construed as an allegation that she had been “swindled” into signing her LPA. There also appear to have been some vague allegations that her attorneys had seized her property for themselves.
b) The correct course of action should have been for the social worker to regard this as an allegation of financial abuse against my mother’s family and invoke her local authority’s safeguarding policies to assess my mother’s mental capacity to make the allegation and offer her an advocate.
c) This did not happen. Instead the social worker was told by her local authority Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS) lead that she had a duty to report the matter to the Office of the Public Guardian (OPG) for “human rights” reasons – despite the fact that my mother had not given consent.
d) The social worker telephoned the OPG and was informed that, if my mother had the mental capacity to make a decision about contacting the OPG (which the MCA/ DoLS lead and social care staff seemed to have convinced themselves to be the case), they could not investigate the allegation unless she requested an OPG investigation herself.
However, the social worker omitted to tell the OPG that the local authority had belatedly appointed an independent consultant psychiatrist in July 2018 to properly assess my mother’s capacity to make specific decisions, including decisions about her LPA. The consultant was appointed after my husband and I had told the local authority that we did not want my mother to be subjected to any further mental capacity assessments in respect of important decisions unless they were conducted by an NHS mental health professional in full consultation with her attorneys.
On 2nd October 2018 the psychiatrist explained to my mother that a social worker had alleged to him that she wanted to revoke her LPA. He recorded that she vehemently denied the allegation.
The consultant psychiatrist completed his report on 5th October 2018, concluding that my mother did not have the mental capacity to make decisions about her LPA, health and social care needs and place of residence, and was unlikely to regain capacity due to her vascular dementia. His opinions were consistent with those that my husband and I formed ten months earlier, in December 2017, and which were ignored by the social care workers.
The unintended consequence to the local authority of its workers’ intransigence was that it spent six months of Better Care Funding to keep my mother in a temporary placement in residential care.
On 9th October 2018 local authority social care staff, including its MCA lead, met to review the independent consultant psychiatrist’s mental capacity assessment and concluded that my mother’s attorneys had not abused their position. Needless to say, the local authority has not yet apologised for its employees’ disregard of the MCA, their calling into question our integrity as attorneys, and the harm and distress their unacceptable behaviour caused to my late mother, a vulnerable 97 year old.
Learning from my family’s experience.
1) If you are an attorney appointed under LPA, make sure you understand how a proper mental capacity assessment should be conducted so that you can spot and challenge professionals and care workers, who fail to comply with the MCA.
As well as the MCA Code of Practice I found these resources helpful:
The Office of the Public Guardian’s “Making decisions, a Guide for people who work in health and social care” [3]. This document explains the process professionals should follow when conducting capacity assessments and page 20 explains how they should respond to challenges to their opinions.
The Open University has a free, online course “Understanding mental capacity” which I found very useful. [4]
2) Unfortunately the Office of the Public Guardian will not deal with attorneys’ complaints that those acting in a professional capacity have breached the MCA because it regards this as outside its remit. It will only investigate complaints against attorneys and Deputies appointed by the Court of Protection.
However, if you can influence the authorities to appoint an independent consultant psychiatrist (at their expense) to conduct a proper psychiatric and mental capacity assessment, it is possible to achieve a proper outcome, and the report can be used as input to NHS Continuing Healthcare Checklists and Decision Support Tools at a full assessment.
3) Insist that any psychiatrist appointed meets the following criteria for doctors which apply to mental health assessments under Deprivation of Liberty Safeguards (which are part of the MCA and relevant to decision making about place of residence):
The person must be:
a) approved under section 12 of the Mental Health Act 1983; or
b) a registered medical practitioner who the supervisory body is satisfied has at least three years post registration experience in the diagnosis or treatment of mental disorders
c) The supervisory body (local authority) must be satisfied that the person has successfully completed the Deprivation of Liberty Safeguards Mental Health Assessors training program made available by the Royal College of Psychiatrists.”
[2] https://publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf