Care advice differs from every other kind of financial advice in one respect. The person who needs the advice frequently cannot give you instructions, and the people in the room may have interests of their own. CF8 tests whether you know how to proceed properly.
The five principles
The Mental Capacity Act 2005 sets five principles that underpin every decision.
- A person must be assumed to have capacity unless it is established that they lack it
- A person must be given all practicable support to make their own decision before anyone concludes they cannot
- An unwise decision is not, by itself, evidence of a lack of capacity
- Anything done for a person who lacks capacity must be in their best interests
- Any action must be the least restrictive of the person rights and freedoms
Capacity is decision specific and time specific
There is no such thing as a general certificate of incapacity. A person may have capacity to decide what to eat and where to live but not to manage an investment portfolio, and capacity can fluctuate through the day. The statutory test asks whether the person can understand the information relevant to the decision, retain it, weigh it up and communicate their decision. If any one of those fails because of an impairment of mind or brain, they lack capacity for that decision at that time.
Powers of attorney
| Type | Scope | When usable |
|---|---|---|
| Property and financial affairs LPA | Bank accounts, investments, property, bills, care fees | Once registered, and while the donor has capacity if the donor permits |
| Health and welfare LPA | Medical treatment, care arrangements, where the person lives, life sustaining treatment if expressly authorised | Only when the donor lacks capacity for the decision |
| Enduring power of attorney | Property and financial affairs only, made before October 2007 | Still valid, must be registered on loss of capacity |
| Deputyship | Ordered by the Court of Protection where no LPA exists | Once appointed, subject to supervision and annual reporting |
An LPA must be registered with the Office of the Public Guardian before use. Attorneys must follow the Act principles, keep the donor money separate, keep records, and cannot make gifts beyond customary small gifts on customary occasions without court approval. Attorneys can be appointed jointly, meaning all must act together, or jointly and severally, meaning any can act alone.
An advance decision to refuse treatment is different again. It concerns treatment refusal only, must be in writing, signed and witnessed where it relates to life sustaining treatment, and it takes precedence over a health and welfare attorney appointed earlier.
Where there is no attorney, no deputy and no family or friends to consult on a serious decision, an independent mental capacity advocate must be instructed.
Advising in practice
- Establish who has authority before taking any instruction, and see the registered document rather than accepting a family assurance
- Meet the client where possible, even where an attorney is acting, and record their views
- Choose the time and place to suit the person, avoid jargon, allow longer, and consider a second meeting rather than pressing for a decision
- Be alert to a family member steering the outcome towards their own interest, particularly on gifting and on choosing a cheaper care setting
- Record what the client said, what was explained and how capacity was considered
Safeguarding
Advisers should recognise the signs of abuse, which includes financial abuse, neglect, physical and psychological abuse, and know that concerns are reported to the local authority safeguarding team. Financial abuse indicators include unexplained withdrawals, a new person suddenly involved in the person finances, pressure to change a will and unpaid bills where funds exist. A safeguarding concern is reported even where the adviser is not certain, because investigation is the local authority responsibility, not the adviser.
Where candidates lose marks
- Saying a person lacks capacity because their decision seems unwise
- Treating an LPA as usable before registration
- Assuming a health and welfare attorney can operate a bank account
- Forgetting that a property and financial affairs LPA can be used with consent while capacity remains
- Recommending a gift on an attorney instruction without mentioning court approval
The point of it all
The framework exists so that decisions made for a person who cannot decide for themselves still reflect what that person would have wanted. In an exam answer, name the authority, name the test, and state that the decision must be the least restrictive option in the person best interests. That sentence carries most of the available marks and it is also, in practice, the right way to work.