Legal Information for Carers
This section deals with some of the legal issues that carers face, if the person they care for lacks capacity, and planning for the future.
If somebody is unable make decisions for themselves because of a mental illness, severe learning disability, advanced dementia, brain injury, stroke etc, then they are said to lack mental capacity.
The Mental Capacity Act 2005 is designed to protect people who cannot make decisions for themselves. It also allows someone, who is losing mental capacity, to make plans for someone to make future decisions on their behalf. It also aims to:
- allow adults to make as many decisions as they can for themselves.
- allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time.
- ensures an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted.
- provides protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests.
Anyone aged 18 or older who has the mental ability to make decisions for themselves can arrange for someone else to make these decisions for them in the future. This can be done at any time. This legal authority is called ‘power of attorney’. The person who is given power of attorney is known as the ‘attorney’ and must be over 18 years old.
A Lasting Power of Attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.
This gives you more control over what happens to you if you have an accident or an illness and can’t make your own decisions (you ‘lack mental capacity’).
There are 2 types of LPA: Health & welfare and Property & financial affairs. You can choose to make one type or both.
Health and welfare lasting power of attorney
This LPA to give an attorney the power to make decisions about things such as:
- your daily routine, for example washing, dressing, eating
- medical care
- moving into a care home
- life-sustaining treatment
- it can only be used when you’re unable to make your own decisions
Property and financial affairs lasting power of attorney
This LPA gives an attorney the power to make decisions about money and property for you:
- managing a bank or building society account
- paying bills
- collecting benefits or a pension
- selling your home
- it can be used as soon as it’s registered, with your permission.
How to make a lasting power of attorney
- choose your attorney (you can have more than one)
- fill in the forms to appoint them as an attorney
- register your LPA with the Office of the Public Guardian (this can take up to 10 weeks)
- it costs £110 to register an LPA, although you may be eligible for a reduction or exemption.
- You can cancel your LPA if you no longer need it or want to make a new one.
For further information and for copies of the relevant forms, please visit Office of the Public Guardian or call 0300 456 0300.
A benefits appointee is someone who acts on a person’s behalf in all social security matters.
If you are the carer for a young person with learning disabilities you were probably contacted about this by the Department of Work and Pensions when your son or daughter turned 16. The DWP will assess whether a person can manage their own affairs or not. If you are an appointee, you have to notify the DWP of any change in circumstances, deal with the banking and only use the money for the benefit of the disabled person.
It is important that everyone, carers included, makes a will. This is even more important if the person you care for has a learning disability or lacks capacity in other ways. By writing a will and setting up a trust, you can make sure that a family member or friend with a learning disability, etc will get the financial support and protection they need after your death.
If you set up a discretionary trust with a solicitor it will become active when the last remaining parent dies. It can encompass not only your son or daughter with a learning disability, but their other siblings too if you wish. You will have to appoint trustees while you are still alive to administer the trust when you are deceased. It is best to choose people who are a generation younger than you, so that they will be around for a long time to support your relative.
Contact Carers Bucks who can signpost you to solicitors who can help with wills and have experience of setting up trusts.
If you care for someone with a learning disability Mencap run a Planning for The Future service to signpost people, and have useful information they can send you. They also run seminars about wills and trusts around the country throughout the year. They can advise you on where these are in your area.
It is also possible for someone with a learning disability to make a will, if they have capacity to do so. It is best to get specialist legal advice to set one up.
Are you caring for someone?
Do you look after someone who cannot manage without you because they are ill, frail or have a disability?
If so, you are a carer and Carers Bucks can help you.