You can give permission to another person to look after your affairs for you now, or you can give them permission to do this if you lack mental capacity to look after your affairs yourself in the future. You can do this through lasting power of attorney (LPA) or Deputyship.
Lasting power of attorney (LPA)
Under a power of attorney, the decisions made by the person you choose, are as valid as the ones you would make for yourself. You can nominate someone to have property and financial affairs lasting power of attorney, health and welfare lasting power of attorney, or both.
The person you nominate can make decisions while you still have capacity, but you also have control over what decisions are made on your behalf. If you lose capacity in the future, this person will be able to make decisions on your behalf. The LPA has to be registered which you can do online.
Sometimes people become unable to make some informed decisions (where they lack mental capacity). They could have dementia, a learning disability or mental health issues, and need help to make decisions about their health and welfare or property and finance.
There are mechanisms for challenging the application for Deputyship and you may need to take additional advice.
When someone's freedom is restricted
Deprivation of Liberty Safeguards (DoLS)
You can be 'deprived of your liberty', which is where your freedom is restricted, if you lack mental capacity and you are:
- in a care home or hospital
- under continuous supervision and control
- not free to leave.
When you don't have a say in where you live or the care and treatment you receive, this is where the restrictions may be in place. This must be done in your best interests, in consultation with those closest to you and with any restrictions kept to a minimum. Independent checks are done to ensure your rights and wellbeing stay protected, and this is called the Deprivation of Liberty Safeguards (DoLS).
Who decides on restricting someone's freedom?
A ‘best interests assessor’ and a 'mental health assessor' will carry out these independent checks to see if they agree that 'deprivation of liberty' is necessary. If they agree, they will ask us (the Local Authority) to authorise the 'deprivation of liberty' which can last up to 12 months before it's reviewed again, or until you request a review or appeal the decision. If we don't agree, we can make recommendations and conditions if we believe something should be changed with your care and support plan.
If you are in a community setting it may be necessary to make an application to the Court of Protection to deprive you of your liberty and authorise the restrictions in place if they agree that this is appropriate (Section (2)(a) Mental Capacity Act 2005).
You have the right to ask us for a review or appeal the authorisation from us. Alternatively, you can appeal to the Court of Protection to appeal an authorisation decision.
Who will represent someone with restricted freedom?
If you have been 'deprived of your liberty', you will always have a representative. This can be either someone you have chosen (if you have capacity to do this), or someone who is appointed to act on your behalf (for example, an Independent Advocate). They are appointed to represent your views and wishes around your accommodation or your care and treatment. This could also include appealing against the decision to deprive you of your liberty.
If you, or someone you know has had or is likely to have their freedom restricted, and you want to talk to someone about it, please call our DoLS team on 01225 47 79 00.