Myths and misconceptions – Resolving LPA issues with local authorities and care homes
Alison Lamont, solicitor associate in our Wills and Mental Capacity team, sets the record straight…
The problem: "My family member did not make a Lasting Power of Attorney (LPA) for welfare and has now lost capacity. Can social services, the health authority or a care home do as they please without consulting with me?"
This is a commonly-held misconception and seems to be perpetuated by certain care professionals. Family members are being told that because their loved one did not make an LPA for welfare, care professionals have no duty to consult with them.
This leaves family members feeling cut off and distressed, often at an already very difficult time.
In fact most health and welfare decisions concerning people who lack capacity should be taken informally and collaboratively. Decision making should involve consultation with family members interested in the welfare of the person who lacks capacity, whether or not they have been appointed as attorney.
It will not be practicable for care staff in a care home or hospital to consult with family members on every small decision (for example, what their loved one should wear or have for breakfast if they cannot make those decisions).
However, with regard to more significant decisions, for example, where somebody who lacks capacity should live, those with an interest in that person's welfare should always be consulted. Decisions should be taken collaboratively, not in a dictatorial way with one person or one authority imposing their view.
Where there is disagreement regarding care and treatment, the matter can be resolved by the Court of Protection by a one off order on the specific issue. These applications can be costly and the general rule in health and welfare applications is that each party pays their own costs. Chapter 15 of the Mental Capacity Act Code of Practice should be applied before a Court application is considered. This starts off by saying: "It is in everybody's interests to settle disagreements and disputes quickly and effectively, with minimal stress and cost."
"Do I need a deputyship for health and welfare if there no welfare LPA?"
We generally advise against such applications. Just because there is no LPA for health and welfare, it doesn't follow that family members must apply for deputyship if their loved one lacks capacity. Unlike financial deputyships, welfare deputyship applications rarely succeed.
In the case of G v E [2010], the Court stated that the Mental Capacity Act (MCA) and its Code are "constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together." In cases where the Court is asked to make a decision regarding health and welfare, it must make an order that is "as limited in scope and duration as is reasonably practicable in the circumstances." Even if decisions about complex and serious issues need to be taken, the Court prefers making a one off order to the appointment of a deputy.
"What can I do if I am not being listened to by the authority responsible for care?"
We can advise on action that can be taken under Chapter 15 of the MCA Code of Practice in order to try to settle the disagreement. We can also advise if an application to the Court of Protection is appropriate. This will depend on the circumstances of your case but sometimes it will be appropriate to request a one off Order from the Court to resolve the issue.