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Carers UK Forum • Lasting Power of Attorney, and the Mental Capacity Act
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Lasting Power of Attorney, and the Mental Capacity Act

Posted: Wed Oct 01, 2014 10:58 am
by hillside205
I want to bring to notice a conflict in understanding between the issue of Powers of Attorney, and the Mental Capacity Act 05.

We have recently had cause to complain to the Local Government Ombudsman (LGO) about the mismanagement of our son's care arrangements over many years, which has led to many disastrous situations. Our son is now 45 years of age, and has multiple disabilities.

Within the spirit of the Mental Capacity Act he is classed as being 'unable to manage his own affairs', and therefore we act on his behalf, as his prime advocates.

We are told by the LGO that they 'cannot investigate the complaint' because we do not hold Lasting Power of Attorney. But we cannot get LPA because in order to get an LPA he would have to have some capacity to give his permission. But he cannot give 'informed permission'. So what is to be done?

The idea of a Welfare Deputyship (as per the MCA) is meaningless, since the Public Guardian's office is supposedly not keen on giving out these forms of legal authorisation - on the basis that 'decisions are supposed to be made on the principle of best interests'.

But the best interests principle is like knitting fog - it becomes a tool for local authorities to do just what they want to; they can ignore the wishes of the family, and misuse the legality of the situation merely for their own interests - sod those of the individual!

So what is to be done - the LGO won't investigate a complaint; which means that the L.A. can just do what it wants without challenge. The individual without capacity is effectively left without any protection in law.

That is surely an infringement of basic Human Rights within the meaning of the Human Rights Act 98.

Re: Lasting Power of Attorney, and the Mental Capacity Act

Posted: Wed Oct 01, 2014 6:03 pm
by crocus
My mum has Alzheimer's and has lost capacity, so I was unable to get Power of Attorney for her. I am currently going through the route of Court of Protection which is used when the person concerned does not have capacity. Is this a route you could take?

Re: Lasting Power of Attorney, and the Mental Capacity Act

Posted: Fri Oct 03, 2014 5:27 pm
by g.herschel
when the tory boys walk away from the E.C.H.R. all is lost

Re: Lasting Power of Attorney, and the Mental Capacity Act

Posted: Tue Oct 21, 2014 1:01 pm
by purge11
This is a very difficult issue what one has to ask who benefits? I myself am a carer for someone suffering mental health difficulties and I dread the day when capacity becomes far less.

I forsee I will have to manage affairs, but then the law steps in and ignores my pleas, because they state my caree needs capacity to agree to the matter.

So how is this possible? One needs to ask who benefits from this situation? Surely it cannot be the carer. Does the new care bill take this into account?

I would like to here from other carers.

Re: Lasting Power of Attorney, and the Mental Capacity Act

Posted: Wed Oct 22, 2014 10:12 pm
by crocus
Purge, the whole point of court of protection is to give an appointed person (the person who is applying for court of protection) the legal power to make financial and/or health decisions on behalf of another person who has lost capacity.

Its a bit like Power of Attorney, but the person in question doesn't have to give consent (because they can't, as they have lost capacity).

Re: Lasting Power of Attorney, and the Mental Capacity Act

Posted: Thu Oct 23, 2014 6:08 am
by bowlingbun
Going back to the original posting, my son has been assessed by the LA as having only limited understanding about what he wants, but not the implications of his decisions. I have complained to the LA and the Ombudsman, who investigated without any problem. I think, perhaps, that your real problem is that the LA refuses to investigate - and until they have done so the Ombudsman will, generally, not investigate. There is a way round this, by complaining to the Ombudsman about the "unreasonable delay" (make sure you use these words) of the LA in investigating your original complaint. Then they will get in touch with the LA and tell them to get on with it. That's what happened in our case anyhow. Hope that helps.