13 Feb Are you an Attorney under a Lasting Power of Attorney for Property and Affairs? What should you take into consideration in relation to care or treatment?
If you are appointed as an attorney under an LPA for property and affairs it is your legal responsibility to act in the person’s best interests and to take reasonable care when making decisions on their behalf.
If the person that granted the LPA has capacity they should be involved in any decisions or actions taken in connection with their care or treatment. Under Section 5 of the Mental Capacity Act if the attorney has taken reasonable steps to establish capacity and believes that the person lacks capacity they can make decisions for them in relation to their care provided that any actions taken are in the person’s best interests.
If the person that granted the LPA is “self-funding” their care, although the local authority social workers may become involved in consideration of care arrangements, it will be for the attorney to decide in the first instance whether the person should move into a care home. As the appointed attorney you are able to act as proxy for the person. Any decisions have to take the person’s best interests into account and the full impact upon their welfare needs to be carefully considered. There may be the option to provide care at home possibly subject to various modifications. If a care home appears the best option, as well as assessing suitability in relation to any nursing needs, factors such as proximity to family and friends should be taken into account.
As an attorney, you can ask the local authority social workers for advice and assistance when assessing the person’s care needs but unless the local authority is funding the care it is not for them to decide where the person should live. However, the local authority still has a responsibility to ensure that any decisions made take into account the person’s rights not to be deprived of their liberty. If the person does not have the capacity to consent to a care home placement appropriate steps may need to be taken by the local authority and an Independent Mental Capacity Advocate appointed, if necessary to ensure that the attorney is acting in the person’s best interests.
In practical terms, it is sensible wherever possible to communicate with all the relevant people involved in the person’s daily life to ensure that all their needs are being met in relation to where they should live. In the case of a self-funding person who lacks capacity, although it will be the decision of the property and affairs attorney to make this decision, if a different individual is appointed as their health and welfare attorney the views of that attorney should also be taken in account. Close communication and discussions with all parties, involving the person concerned as much as possible, should ensure that their best interests remain paramount and the right decisions relating to care can be made.
If you are an attorney and have queries about your role please contact me Linda Hall, Private Client Executive, on 01258 444481, Rutters Solicitors Sturminster Newton, Dorset. To find out more about our Private Client Team click here .