Power of Attorney

During this video, we will explore the types of Powers of Attorney and the five key principles within MCA.

Legally there are only two ways in which you can make decisions for someone else. These are; when you are appointed as someone’s attorney under a Lasting or Enduring Power of Attorney agreement or if you are a deputy appointed by the Court of Protection.

Both of these are legal arrangements that you cannot undertake without agreement from the Court of Protection or the Office of the Public Guardian.

The Lasting Power of Attorney is a legal tool that allows a person to make certain decisions on behalf of another person. The appointed person can manage finances in the future if the person they are responsible for, reach a point where they are no longer able to make decisions for themselves. They can also make decisions relating to health and welfare.

This is not something that can be granted instantly and can take up to nine weeks for this to be registered. Attorneys can make decisions for you when you no longer wish to or when you lack the mental capacity to do so.

Enduring Power of Attorney has been replaced by the Lasting Power of Attorney but this can still be used if it was in place and signed before October 2007.

The Deputy appointed by the Court of Protection is someone who is able to make decisions for someone who is unable to do so on their own until that person dies or becomes able to make decisions for themselves again.

Now that’s covered we will explore the 5 principles of MCA;

Principle 1 - Every Adult has the right to make his or her own decisions and it must be assumed they can unless it is proved otherwise.

This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.

Principle 2 – A person must be given all reasonable help before anyone treats them as though they are unable to make their own decisions.

This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions

Principle 3 – Just because someone makes what might be seen as a poor decision, it should not be assumed that they are unable to make any decisions.

The key point here is, can the individual make a decision for themselves? If they make a decision that you don’t agree with that does not mean they do not have mental capacity! You must not treat the person as unable to make a decision, just because they make a decision that you do not agree with.

People have the right to make what others might regard as an unwise or eccentric decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. You cannot treat them as lacking capacity for that reason.

Principle 4 – Any decision made for a person who is unable to do for themselves must be done in their best interests.

Let’s look at an example, if an elderly person has suffered a fall may have been admitted to hospital or moved into care as they are unable to cope without support. They may not agree with this or even object to a stay in hospital but the decision is made by someone else who is acting in their best interests.

Principle 5 – Any decision made for someone else should not restrict their basic rights and freedoms.

Making a decision or acting on behalf of a person who lacks capacity is a huge responsibility. In making this decision we must consider how this can be done with minimal impact on their basic rights and freedom. Any intervention should be proportional to the particular circumstances of the case.