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how a lasting power of attorney works

The information on the READ MORE link is essential for anyone considering a Lasting Power of Attorney for themselves or for a loved one and we offer the opportunity to download a copy of the information to keep. We also highly recommend that you read ‘Why A Deputyship Should Be Avoided’.

If you are considering making a Lasting Power of Attorney you may be concerned that you will be handing authority to other people to simply take over your life and that you will have little control. If so then you will be pleased to learn that this is not the case. You have the opportunity to say who has legal authority to act for you. But any third parties must, by law, liaise with and consult those you appoint. And those you appoint must respect your views as I shall explain. The legislation involved is the Mental Capacity Act, 2005 and there are five key principles which govern it and protect you. It is important for attorneys to understand those key principles as they are required by law to follow them.

You will see that attorneys must act in the best interest of a person who lacks capacity. The important thing here is that ‘Best Interest’ means doing, as far as possible, what you would have done had you retained capacity. The following information will be helpful in explaining the safeguards that are in place and how your attorneys are to act.

the five key principles

The Five Key Principles define the approach the law takes since the Mental Capacity Act 2005 and those principles are:

* A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. That capacity is presumed to be ongoing until there is evidence to the contrary.

* The right for individuals to be supported to make their own decisions – people must be given all appropriate help before it is decided that they do not have the capacity to make a particular decision. Again, people must be given every possible help in making a decision. An inability to make a decision in regard to a matter on one occasion does not give attorneys the right to make a decision for the donor next time. This is a significant change and acknowledges that mental capacity fluctuates.

* That we can all make unwise or eccentric decisions without being considered mentally incapacitated. Attorneys must not attempt to overrule a decision made by the donor purely because it is not the decision they would consider prudent or even reasonable.

* All decisions must be made in the best interests of the person without capacity. The Mental Capacity Act provides a checklist of factors which all decision makers must work through in deciding what is in the best interests of the person for whom they are acting. This includes taking into account the wishes, feelings and beliefs of the person and also wherever possible, and to the fullest extent possible, involving them in the decision-making process.

* Any decisions made should use the least restrictive means of intervention in the affairs of the person for whom attorneys are acting.

the best interest test

Any decision made on behalf of someone who lacks capacity must, by law, be made in their “best interest” (not just in the interests or for the convenience of the attorney). This sounds reasonable but of course if something is law then it has to be properly defined otherwise it is difficult for anyone to be sure that they are within the law. For that reason the Mental Capacity Act lays down the following rules which attorneys, or anyone else must follow when making a decision in respect of or on behalf of a mentally incapacitated person. Those acting under a Lasting Power of Attorney must act in accordance with the Key Principles and should bear in mind the following.

First of all, while it might be reasonable to assume that one is safe in making any decision that is felt to be clearly in the best interests of the incapacitated individual you may be surprised to realise that this is not necessarily the case. One must, by law, consider the probable attitudes and actions of the incapacitated individual. While attorneys may think it is alright to simply do what they think is most sensible it is a breach of the Act to ignore the known wishes of the person they act for. So “best interest” under the Mental Capacity Act means their personal wishes even if those wishes might be seen as unwise, eccentric or even unreasonable (see the third Key Principle).

how do i decide what is in the donor’s best interests?

Although there is no single definition of “best interests”, the Act gives a non-exhaustive checklist of things that must be considered when making a decision on behalf of the Donor:

* The Donor’s known past or present wishes and feelings. It is therefore important that you communicate with the Donor, familiarise yourself and understand their wishes, feelings and views. This places the Donor at the centre of any decision being made on their behalf.

* Any views the Donor has expressed in the past that would help you to understand what their wishes and feelings might be. This might be things they have written down, said to other people, or how they may have behaved in similar circumstances in the past.

* The Donor’s beliefs or values, which might influence the decision. This might include religious beliefs, cultural background or moral views.

* Any other factors they would be likely to consider if able to do so.

* Family members, parents, carers and other relevant people who care for the Donor or are interested in the Donor’s welfare should be consulted if this is practical and appropriate.

* The possibility that the Donor may regain the ability to make their own decisions in the future through, for example, learning new skills or perhaps following recovery from a stroke.

The service provided by Professional Will Services is designed to give clients and their attorneys the information and support they need to feel confident. It is much more than a document preparation service. We even provide a special publication, unique to us, containing important information which acts as a reference guide. The information in this article is a brief excerpt from it. In addition, clients and their attorneys have six months after completion of the process during which they have unlimited access to Bob Cullen by telephone and email. You may consult with us during this period, without further charge, in regard to any queries that may arise.

For further information please call the helpline.

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