Tips For Attorneys: How To Make The Best Decisions When Acting Under An LPA

Taking an active role in managing someone's affairs, having been appointed as an attorney in an LPA is not something many people are prepared for or have any experience of. The need to 'take control' often happens at a point of crisis and a time of great stress for the family. The guiding principles of the Mental Capacity Act are often not fully considered when making decisions, and that could lead to challenges to your decisions in the future. To help guide and protect you as an attorney, we have set out below some of the main things you should consider when making decisions for someone, whether those are financial or welfare-related.

The five key principles that guide decision-making for individuals who may lack capacity are:

1. Presumption of Capacity: Every adult is assumed to have capacity unless it is established otherwise.
2. Support to Make Decisions: All practicable steps must be taken to help the person make their own decisions before concluding that they are unable to do so.
3. Right to Make Unwise Decisions: People have the right to make decisions others might consider unwise or eccentric.
4. Best Interests: Any decision made or action taken on behalf of someone who lacks capacity must be in their best interests, considering their wishes, feelings, beliefs, and values.
5. Least Restrictive Option: When acting or making decisions on behalf of someone, you must choose the option that least restricts their rights and freedom of action.

As an attorney making decisions for someone, how should you apply these, the aim of which is to uphold the person's dignity and independence wherever possible and evidence your decisions?

What is the Decision to be made?

First, work out exactly what needs to be decided or what action might need to be taken for the person.

Can They Decide for Themselves?

Check if the person really can't make this decision right now. Make sure your reasons are clear and not based just on their age, looks, behaviour, or condition. If you think any of those things might be getting in the way, revisit your decisions as to whether they can decide for themselves. You always have to remember that an unwise decision doesn't mean they lack capacity to make the decision.

Should We Wait?

Think about whether you could put off the decision to give them a chance to recover and decide for themselves later. If waiting isn't possible, record why you don't think this is possible.

Were They Involved?

See if the person is able to have a say in the decision, they may be able to express their view on something if explained in different ways. Record the extent they were (or weren't) involved in the decision.

What Do They Want or Value?

Take into account what's important to the person—their wishes, feelings, beliefs, and anything else they'd want considered. If their previously held views don't match what they say now, explain why. Also, check if there are any written notes about their wishes, a statement of wishes, may have been completed at the same time as the LPA to give you guidance on any difficult decisions you may have to make.

Who Else Was Involved in the decision?

Talk to anyone the person wanted involved or who you consider should be involved —like their carer, family, friends. Record what these people think.

Have you considered all the options?

The decision you make needs to be the least restrictive option in terms of imposing the minimum limitation on the individual's life, independence, and choices. One example is access to bank accounts, should you take away all access? Limit access to one account with one bank for daily spending? is a prepaid card better than access to cash withdrawals?

Record What Was Decided and Why

Key details to record include

• What the decision was
• The date it was made
• Who made the decision
• What you considered when making the decision, especially if someone you consulted disagreed
• Why you made this decision

This will take time, but notes made at the time (possibly also circulated to those involved in the decision) are the best way to document the decisions you have made and why. Trying to remember specific decisions, if you are ever asked to justify any, is very difficult without records. A bit of time spent documenting a decision will save considerable effort in the future, if you are ever asked to explain decisions you have made as an attorney.

Decisions you may not be able to make

• The LPA may not authorise you to make certain decisions, so check the LPA thoroughly for any restrictions on what decisions you can make.
• You cannot make gifts of someone's assets as an attorney if they lack capacity. There may be very limited occasions when this is possible, but you should always be cautious about such things, and in most cases, specific approval of the Court of Protection is needed.
• Loans to family members or an attorney should also be avoided; if you are being asked to consider these, or any existing loans are outstanding, you should take legal advice.
• Investment in a business owned by or linked to a family member or you as an attorney should be fully reviewed as to whether it is in the person's best interests to do so. Again, if you are being asked to consider this, you should take legal advice.
• Sale of a property to a family member or related person, or you as attorney or anyone related to you, would likely require approval from the Court of Protection, and you should take legal advice.
• Maintenance payments to relatives or payments to relatives who care for someone need to be considered very carefully, and potentially an application to the Court of Protection would need to be made for authorisation of such payments.
• Entering into a lifetime mortgage (home equity release) will require substantial legal advice and may, in certain circumstances, require authorisation from the Court of Protection.
• If you are considering selling assets, you should check whether these are specifically gifted under the person's will. If they are, you should take legal advice as you may need to apply to the Court of Protection for a Statutory Will to change the provisions of the will, so that the testamentary wishes of the person are not preserved and not undermined by the sale of that asset in their lifetime.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.