AO Solicitors provides exceptional mental capacity legal services to clients. You can appoint someone to manage your affairs while you are ill or abroad. There are three levels of appointment.

Mental Capacity Legal Services Mandate

First is a letter authorising someone to handle something, for example a bank mandate. This is useful for elderly parents to let grown up children protect their money from rogue traders and ensure bills are paid. You can equally make someone your social security appointee to collect benefits, although if you change your mind you might need the government to revoke it.

Power of attorney

Second is a power of attorney making your agent official. This can go as far as you like, for example deciding where you live.

An ordinary power of attorney ceases on mental incapacity so might not be sensible if you expect mental health problems.

A lasting power of attorney (“LPA”) must be registered (the government charges £130 each) but lets someone handle your welfare and/or money.

A money LPA cannot kick in until you lose mental capacity. Before 2007 you could have an enduring power of attorney but that only covered money, not welfare, and needs registering to be used during mental incapacity.

A welfare LPA does not have an implied  power to decide whether to keep the donor alive, but can specify one and can include an advance decision to refuse treatment (a “living will”) other than being kept comfortable.

Most adults can be an attorney, or you can use a bank or solicitor. You can make it a joint authority so several have to sign, to prevent fraud, but this is best done with young healthy adults or companies otherwise if one dies or becomes mentally ill you have lost your power of attorney. Attorneys must act personally and keep records like a trustee.

Deputy

If it is too late to appoint an attorney someone can ask the court of protection to decide one issue or to appoint them as a deputy for all decisions. Several deputies can be required to act jointly. Usually they will be relatives but the court can appoint a professional, which obviously costs money. Deputies are then supervised by the Office of the Public Guardian.

Mental incapacity

Once you are mentally incapable you cannot make a new power of attorney, it will be too late to register an enduring power of attorney, and a welfare lasting power of attorney comes into effect.

You are mentally incapable if you cannot understand (eg brain injury), remember (eg dementia) or use (eg anorexia) information or communicate your decision (eg coma). The test depends on the decision.

You might be capable of one decision but not another. Reference can be made to the Mental Capacity Act Code of Practice. Mental incapacity requires a mental impairment or disturbance that stops someone making a decision even after support. It is up to the professional, eg nurse or solicitor, at the time to decide if someone lacks capacity but they must have a reasonable belief and may be required to explain how they formed it.

Anyone worried about being accused of railroading someone should get an adviser such as a doctor to make an assessment. To make a decision for someone mentally incompetent you need to prove they are mentally incompetent, that you took all practicable steps to help them decide, you decided in their best interests as they would have done and you took the most proportionate action.

Being disabled or sectioned proves nothing. Someone might have capacity to consent to sex but not to sue. Or they might have capacity to handle pocket money but not to employer a carer.

A lucid and intelligent person might lose their capacity to decide whether to have an injection due to a fear of needles. A person with autism might lose their capacity by being unable to view a problem from multiples angles.

It is about understanding rather then wisdom. Everyone has the right to make informed unwise decisions. A mentally incompetent person can delegate what they do not know how to do themselves.

It is not in someone’s best interests to be unhappy but safe, so you cannot lock someone up indoors just because they might get into trouble outside. To establish best interests you would consult the carers, and any independent mental capacity advocate, attorneys and deputies appointed.