When someone makes a power of attorney, they act with capacity to appoint someone else to act on their behalf. A power of attorney gives the attorney the legal authority to deal with third parties such as the local council. Some types of power of attorney also give the attorney the legal power to make a decision on behalf of someone else such as where they should live or whether they should see a doctor (welfare).
When someone has an attorney or deputy managing their finances, that person is the commissioner, the purchaser, the contractor for the care being delivered – unless the attorney has triggered the needy person’s rights under the Care Act in which case the attorney or deputy is just paying the charges rendered by the council – the council is then the commissioner.
A power of attorney about health and welfare can give someone authority to deal with and refuse consent to things like: your day-to-day care, your healthcare treatment etc. Once a person has lost their mental capacity, it’s no longer possible to make a power of attorney; a deputy must be appointed by the Court of Protection. In relation to both types of decision-making, it is possible to apply to the Court of Protection for a decision to be made on a particular matter, by the Court, or if there is a continuing need they can appoint a deputy. So for instance, a tenancy CAN be signed by the Court, or an authorised named person, but a deputy is needed to continue to ensure that the other tenants’ obligations beyond rent payment, are abided by (for instance, repairing damaged fixtures).
The Council can be appointed as a deputy (as we see in one of the reports). The LGO highlights that good administration and practice is expected, citing OPG guidance.
|Name of Council||Title of Report||Number|
|Wiltshire||Wiltshire Council not investigated by LGO, as the complaint was not regarded as brought by a suitable representative||19 010 129|
|Peterborough||Peterborough City Council at fault for failing to give adequate notice and explanation of care charges||19 005 512|