Powers of Attorney Act received Royal Assent

As use of Lasting Powers of Attorney increases dramatically, making best interests decisions poses challenges for more people

The number of registered lasting power of attorneys has increased dramatically in recent years to more than six million, but for the appointed attorney, acting in another person’s best interests at all times can pose challenges.

Lasting Powers of Attorney (LPAs) are legal arrangements that enable a person to grant decision making powers about their health or financial affairs to another person if they lose mental or physical capacity.

Last month, the Powers of Attorney Act received Royal Assent and will soon usher in new reforms to simplify and streamline LPAs and bring the existing paper-based process online to make the system quicker, easier to access and more secure.

Lucie Glover, a Chartered Legal Executive specialises in supporting elderly and vulnerable clients at law firm Furley Page. She said: “The use of LPAs has risen dramatically in recent years, in part as a response to the Covid-19 pandemic, and the Government’s forthcoming reforms will make the process easier to navigate, helping even more people to take advantage of these valuable protections.

“In practice, making best interests decisions can be easier said than done, and appointed attorneys or Court appointed deputies are faced with difficult decisions, such as whether the person should be cared for at home or in a nursing home setting, whether they should receive specific medication, or whether their house should be sold to pay for their care.

“Fortunately, the Mental Capacity Act provides guidance and sets out various factors that an attorney must consider when deciding what is in another person’s best interest. It is important to follow what the Act says, and a solicitor can help attorneys to understand their obligations under the law.”

The key things to consider when making a best interests decision are:

• whether the person is likely to regain capacity to make the decision at some point in the future;
• the person’s general beliefs and values;
• the person’s past and present wishes and feelings;
• whether the person has made any written statement about their wishes;
• as far as is possible, you must also permit and encourage the person to participate in their own decision making; and
• you must take into account the views of anyone who is involved in the person’s care.

Lucie continued: “Ideally, if you are appointed as someone’s attorney, you should discuss with them in advance what they would like to happen in various situations. However, if this is not possible, there is useful guidance from previous cases in this area of law which can help the attorney to make decisions, such as what the person was like before they lost capacity, what was important to them, what did they like/dislike, and what are their religious, spiritual or ethical beliefs.

“Best interests decisions should be taken carefully and with consideration of all the relevant circumstances. One person’s best interest may not mirror another’s, even if they are a couple, are closely related or otherwise heavily involved in one another’s lives.

“If you are appointed under a Health and Welfare Lasting Power of Attorney, the final decision about care or financial matters lies with the attorney(s). This does not, however, prevent any person from contesting your decision if they believe it is not in the best interests of the person you are acting for. In the case of continuing disagreement, an application can be made to the Court of Protection to intervene and make a ruling.”

If you are struggling with making a best interests decision or you wish to understand the law in this area a little more clearly, Furey Page solicitors can help. Meanwhile, if you have concerns about the actions of another attorney, or any decision they have made, the firm’s dispute resolution team can assist.

For more information about Furley Page’s Elderly and Vulnerable client team’s services, please contact Lucie Glover on 01227 763939.