insideKENT Magazine Issue 60 - March 2017 - Page 156

LAW ADVERTISEMENT FEATURE LEGAL ISSUES AROUND MENTAL CAPACITY THE LAW ALLOWS US TO CHOOSE WHO CAN MAKE DECISIONS FOR US IF WE LOSE THE CAPACITY TO MAKE DECISIONS FOR OURSELVES. STEPHEN HORSCROFT, AN ASSOCIATE SOLICITOR AT CRIPPS, OUTLINES THE VARIOUS OPTIONS AVAILABLE. LASTING POWERS OF ATTORNEY (LPAs) LPAs allow you to appoint an attorney or attorneys to make decisions on your behalf. There are two types, covering financial decisions and health and care decisions. The documents must be on official forms and you must adhere to strict signing formalities. An LPA must be signed by a person known as a certificate provider. The certificate provider’s role is to confirm that: a) The donor understands the purpose and scope of the LPA; b) The donor has the required mental capacity on the date of signing; c) The donor has not been put under undue pressure or fraud to create the LPA; and d) There is nothing else preventing the creation of the LPA. The people who may act as certificate providers include solicitors, GPs, registered social workers and non-relatives who have known the donor for at least two years. Once signed, an LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. This is often done immediately, regardless of the donor’s age or continuing capacity, as registration can take several months. Generally, financial LPAs can be used immediately after registration (even while the donor still has capacity) but health and care LPAs can only be used once the donor has lost mental capacity. When setting up a health and welfare LPA you can specify whether you would like your attorneys to have the power to make life sustaining treatment decisions. It is important that you make your attorneys aware of your wishes and feelings regarding how you would like your assets to be managed and how you would like to be cared for. This will assist them to decide what is in your best interests in the future. ENDURING POWERS OF ATTORNEY (EPAs) Although they can no longer be created or amended, EPAs remain valid and only deal with property and finances. They allow the attorney to act immediately but if the donor loses capacity the attorney’s authority is limited until the EPA is registered with the OPG. The effect of the registration is that banks and other financial institutions will only deal with the attorneys and will no longer deal with the donor directly. The registration procedure includes notifying the donor and other specified family members of the intention to register the document and completing registration forms to be sent to the OPG. Once with the OPG, registration of the application generally takes around six to eight weeks to complete. DEPUTYSHIP ORDERS Deputies are appointed by the Court of Protection when there are no attorneys in place and a person loses the capacity to manage their own welfare or property. A deputy has similar duties and powers to an attorney but is more closely supervised by the court. The court requires the deputy to maintain an insurance bond to cover the risk of mismanaging the funds. The application process is lengthy and expensive. Therefore, it is always preferable to get an LPA in place prior to a loss of capacity, if at all possible. The court requires an assessment of mental capacity to be undertaken by a medical professional as part of the application. ADVANCE DECISIONS These documents set out your wishes about giving, continuing or withdrawing specific medical treatment at a time when you have lost the capacity to consent. Provided that they are drafted and signed correctly they will bind medical professionals should you lose capacity in the future. They cannot require particular medical treatment, refuse actions needed to keep you comfortable, request or authorise illegal acts such as assisted suicide, or refuse treatment for any mental disorder. A proxy can be appointed. A copy can be given to your GP to be placed with your records. Advance Decisions are easier to set up than health and care LPAs but are far narrower in scope. Stephen Horscroft can be contacted at or on 01892 506341. @crippslaw About Cripps Cripps is a key regional law firm serving clients nationally and internationally from offices in Kent and London. Recognised countrywide for both its commercial and private client work, Cripps is ranked in the Top 25 Private Client Law Firms. The firm focuses on wealthier families, entrepreneurial businesses and the real estate sector. Find out more at This article gives examples and is intended for general guidance only. 156