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Understanding mental capacity
Understanding mental capacity

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3.1 Power of attorney

While a person has mental capacity, they can give someone they trust the legal authority to act on their behalf should they lose their capacity in the future. This process is known as giving power of attorney. There are various forms of these delegated powers, divided in most UK nations into financial power of attorney and welfare power of attorney. Part 2 of the Adults with Incapacity (Scotland) Act 2000 provides for, essentially, the same anticipatory mechanism. The term refers to a power of legal representation conferred by one person on another by means of a contract of mandate or agency. Future authority, in the event of a subsequent loss of capacity, to act on the individual’s behalf, in both welfare and financial decisions, can be delegated to one or more trustworthy people.

If someone has lost mental capacity but has not arranged for any power of attorney, an application may be made to the Office of the Public Guardian to be appointed as a ‘deputy’ to act on that person’s behalf. This might be a friend or relative, a solicitor, a representative of a local authority, or any other person acceptable to the application. 

Activity 7 Catherine: the legal authority to act on her behalf

Timing: Allow about 30 minutes

Think once again about Catherine, the lady with dementia from Activity 6. Imagine that you have had the interview with her GP and it is clear that the concerns about Catherine’s care and future welfare are well-founded. The GP has suggested that you explore the options of acquiring legal authority for Catherine, for both her financial and welfare needs. The GP will arrange a formal assessment of her dementia, but has suggested that you take legal advice in order to assist Catherine. Rather reluctantly, because you don’t know Catherine that well, you agree, and you subsequently arrange an appointment with a local solicitor. 

1. Search online for ‘power of attorney’. It will be relevant to include your nation in the search term, such as ‘power of attorney England’ or ‘power of attorney Scotland’, because the terminology and legislation is different.

  • a.What are the implications for Catherine if she agreed to give you power of attorney?
  • b.What are the implications if Catherine is deemed not to have capacity and you want to be appointed?

Write some notes in the box below.

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2. Now, note down some questions you would want to ask the solicitor about the implications for you if Catherine agreed to give you power of attorney or, if she were assessed as not having capacity to give power of attorney, if you applied to be appointed as her deputy (England and Wales), or under a Guardianship Order (Scotland), or Controllership (Northern Ireland), to act on her behalf. 

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Comment

There are detailed and explicit legal steps to go through in order to be granted a power of attorney. This is because giving someone else the authority to deal with your affairs and make decisions on your behalf is a major change and should not be taken lightly. There are real risks of some people exerting undue influence upon others for financial gain or emotional control, and these risks should be minimised through full and transparent legal scrutiny.