Does an existing EPA allow the attorney the same rights as a LPA?

[Ady]

I am an attorney with full powers on the EPA registered in my fathers name back in 2006. His mental capacity has reduced over the years and has now reached the point where I believe the mental and welfare agencies should consider placing him in a care facility. They are hesitant to do so and quote the Mental Capacity Act to me and add that my EPA only covers his property and affairs and they would have to consult with him, even though they accept he lacks the capacity to make decisions for himself.
Surely his well being and the decision to be made on where he resides, falls within the phrase, "all my property and affairs", with the emphasis on affairs.
I believe their decision is financially based, as it is less expensive to pay towards his "at home" care package than to pay for him to be housed in a more suitable care facility.
I understand an LPA makes the situation far clearer but I am unable to change what is now in place.

Has this situation been tested or addressed in any way?

 

[jenniferpa]

Hi and welcome to Talking Point.

I'm afraid that the EPA relates only to financial matters. I've actual seen a judgment or perhaps guidance from the OPG/COP about someone trying to interpret "affairs" as you are trying to do which made it clear it that that interpretation would not fly.

Having said that, the truth is that 1)the mental capacity act code of practice makes it clear that everyone should consult with someone who holds an EPA if at all possible but also 2) even if you had an LPA for welfare, you couldn't necessarily place your father in a care home, since they still have a duty to consult with him. Have you read the Mental Capacity act code of practice? It makes a few things clearer and might give you the necessary ammo if your father is no longer safe at home.

You can download it from this page http://www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act

 

[Ady]

Very Gratefull

Hi Jennifer, I much appreciate your answer and guidance

 

[connieonny]

We too had been wondering the same thing.

My wife has held an EPA for her mother since 2004. This was registered a few years back, and not having a new LPA has been a concern It is too late now to set this up as Mil doesn't have capacity.

MiL is due to go into permanent care in the next few weeks or so, as a bed becomes available, and I had assumed that we would take her along as we would take her for any respite stay ie say nothing. If we were to give her prior warning of what is to happen, her agitation levels would be just awful and she would probably refuse to cooperate.

I am a little concerend here. Is the Mental Capacity Act saying that with LPA or EPA the person must be consulted regarding (in our case) a move into permanent care? The Home manager has not mentioned this to us and we assumed we would take her in 'for a little holiday'. I realise it isn't the truth, but we have had to use so many white lies over the years in order to keep her calm. She lives at home with my wife and me and it has been our decision to place her into care (a most difficult decision) as we simply cannot continue with sleepless nights and other problems.

I hope someone is going to tell me that we don't need MiL's permission??
Or have I misread your posting Jennifer - forgive me if so.

 

[jenniferpa]

What should happen and what does happen can be two different thing I'm afraid. In a practical sense if you have a social worker involved they may well ask her because they are supposed to. If you don't have a social worker then the issue may well not come up: a lot of people (rightly or wrongly but I was one of them) maneuvered a person into nursing care with white lies. Pf course not all social workers will ask: I think the more experienced they are the less likely they are to stick to the letter of the MCA but that's just a guess on my part. Strictly speaking if they ask and she refuses to go but there is no where else for her to be (since they can't force you to care for another adult) that's where the deprivation of liberty rules should come into play.

 

[connieonny]

Thanks Jennifer.

No social worker involved as Mil will be self funding, but I did wonder about the covert nature that we have to do these things. That's the worst thing, having to make such huge decisions on another's behalf, and in order to keep things calm it all has to be done in an underhand manner. I expect the Home manager also doesn't want to cause distress either - but I shall mention this to her when we next meet.

Dreadful what we have to do, just dreadful.

Re the health part of the LPA which we don't have as this wasn't in existence at the time. My wife had a discussion with her Mum at diagnosis - not that she could understand it even then -about end of life issues, what she would want or not want etc. Would this count for anything then? Would we have any say whatsoever?

Gosh Ady, you have got us thinking! Thanks for posting this.