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Article 2 There are few things worse than the realisation that a loved one has lost their battle with dementia and can no longer look after themselves.
Discovering that they neglected to award power of attorney before losing their mental capacity exacerbates the already terrible situation. With the number of people with dementia expected to rise to more than a million over the next 20 years, the problem will only become more widespread.
Making the right decision about long term care for a relative is always difficult and stressful. With extra legal responsibilities the burden is even greater.
Since October 2007, under The Mental Capacity Act 2005, the Court of Protection must be satisfied that any decisions about the health and welfare of “a person who lacks capacity” are being made in their best interests. But for many people it is a daunting prospect knowing where to start in the search for the right type of care home or in a good quality care home. That’s before they even consider how the care will be paid for.
“For someone granted power of attorney, satisfying the Court of Protection that they have used all due care to ensure the best interests of the individual are met when finding care is a really serious issue,” says Chris Cain, Chairman of The Association of Independent Care Adviser and Managing Director of Grace Consulting.
“Using an independent care advisor who can provide expertise on the type of care required, where that care can be delivered and who understands the implications of the Mental Capacity Act, helps fulfill the requirements of the court.
The requirement for independent advice and expertise is even greater when no power of attorney has been granted. Independent care advisers are frequently contacted when representatives of the person needing care have to satisfy themselves they are putting that person’s best interests at the forefront of their decision making.
When considering the options for long-term care, there are a number of factors to consider. In terms of welfare the decision should be based on the delivery of the most suitable care. There will also be serious financial considerations to weigh up.
Independent advisors can assist with all these important decisions satisfying the Court of Protection’s requirement to serve the best interests of the person who lacks capacity.
As a cautionary note, when an individual is signing the power of attorney documents, the appointee should note be present. Failure to adhere to this can and has result in the Court of Protection throwing out the power of attorney.
The Mental Capacity Act does not define the term “best interests”, instead, in it’s Code of Practice, it provides a checklist of common factors which must always be taken into account in a situation where a decision is being made for a person lacking capacity.
These factors include equal consideration and non-discrimination. The person’s wishes and feelings, beliefs and values, particularly where these are written down and on the views of other people where practicable and appropriate are another important consideration. It is not enough for the person making the decision to do so on the basis of what they would want for themselves.
As the number of people with dementia and the demand for long term care rise, the role of independent adviser becomes ever more important in assisting those with power of attorney to serve the best interests of the people without capacity.
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