Mental capacity and financial support
The Mental Capacity Act (MCA) provides a legal framework for people who:
- lack capacity to make some decisions for themselves or
- have capacity and want to prepare for a time when they may lack capacity in the future
The MCA applies to a wide range of decisions, including:
- personal welfare
- healthcare
- financial matters
People may have a condition or illness that affects their ability to make decisions. A lack of capacity may be temporary, such as that caused by some illnesses or the influence of drugs or alcohol. Examples of conditions that may cause the person to experience difficulties with decision-making include:
- dementia
- mental health problems
- acquired brain injury
- learning disability
A person's capacity may vary over time depending on the condition or illness that the person experiences. As a result, a Mental Capacity assessment may need to happen when certain decisions need to be made.
Power of Attorney
Where a person is able to plan ahead they can register a person(s) they want to act on their behalf to make key decisions (Attorney).
There are two kinds of Power of Attorney:
- Lasting Power of Attorney for Property and (financial) Affairs (LPA)
- Enduring Power of Attorney (EPA)
A property and financial affairs LPA can be used to appoint attorneys to make a range of decisions, including:
- the buying and selling of property
- operating a bank account
- dealing with tax affairs
- claiming benefits and pensions
- investing the donor's savings
This chosen person(s) can be appointed by registering them at them at the Office of the Public Guardian. A Power of Attorney application would be appropriate where a person is going into a care home and has:
- savings
- investments
- and/or property
Appointeeship
An Appointee is somebody who is put in place to manage a person's benefit. This occurs when:
- the individual is not able to manage their own finances and
- an LPA is not in place
This person cannot make decisions about anything other than benefits.
The Department for Work and Pensions will carry out an assessment to determine whether a person has ability to manage their benefits. If they cannot, a person will be chosen to do this for them.
Most of the time the person selected for this will be a member of the person's family. It is also important to note that it can be someone from an organisation who provides an appointee service. An example of this is the Local Authority.
Court of Protection
If an LPA is not in place an application can be made to the court for a deputy appointment to manage a person's financial affairs. This occurs in an instance where a person has lost capacity and decisions need to be made in respect of their:
- finances
- assets or property
A Deputy may be:
- family members or friends
- a Professional deputy (mainly legal firms specialising in this area of law)
- the Local Authority acting as deputy (usually as a ‘last resort’ where nobody else can act)
The order of appointment will set out the scope of the deputy's authority and powers to act on the person's behalf. Any deputy appointed by the court has a responsibility to act in accordance with the MCA. A Deputy can only make decisions where the person is not able to do so themselves. More formal decisions will require an assessment of capacity by a professional. An example of this is a Social Worker.
Advocacy
This is a way of supporting an individual to:
- say what they want
- ensure their rights are upheld
- access services or other resources that they are entitled to
Paid professional advocates are independent of the local authority. They ensure that:
- they represent the person only
- there is no conflict of interest
These professionals support these individuals who are experiencing difficulties with managing their money, this would involve:
- supporting the person to make decisions about their money
- check the person is getting the right benefits
- support the person to set a budget
- support the person with their banking arrangements
The Council can provide a person with details of these services in the area. This is provided on request.
If you would like a copy of any of this information then please:
- send us an email
- telephone the Financial Assessment Team on 01702 215008 option 2