Lasting powers of attorney and deputies
The Mental Health Act does not affect the power that attorneys or deputies have to make decisions about the person with dementia's welfare or property and affairs.
- The Mental Health Act 1983
- Which sections of the Mental Health Act are relevant to dementia?
- The key roles of the Mental Health Act
- Safeguards and challenges to a detention under the Act
- You are here: Lasting powers of attorney and deputies
- Deprivation of Liberty Safeguards and the Mental Capacity Act 2005
- The law in Northern Ireland
- The Mental Health Act 1983 – useful organisations
The Mental Health Act 1983 and guardianship
An ‘attorney’ is a person who is appointed through a legal document called a Lasting power of attorney (LPA). A 'deputy’ is someone who may be appointed by the Court of Protection if a person has not made an LPA while they had the mental capacity to do so.
Under the Mental Capacity Act 2005, attorneys and deputies have the power to make decisions about a person’s welfare or their property and affairs if the person doesn’t have the mental capacity to make these decisions for themselves. The Mental Health Act does not affect this power. If a person is detained under the Mental Health Act, the attorney or deputy can still carry out their role.
However they can’t:
- give consent for the person to have certain medical treatments for their mental health, where the Act says the person being detained must give their consent
- make decisions about where the person should live, if they are detained under a section or a guardian has been appointed to them.
Find out more about Lasting power of attorney (LPA)
Many people with dementia will eventually reach a point where they are no longer able to make decisions for themselves. When this happens a carer or family member may need to make decisions on their behalf.
If the Mental Health Act is being used to detain a person or a guardian has been appointed, the person can still create an LPA (if they have the mental capacity to do so) and a deputy can still be appointed.
Find out about becoming a deputy for a person with dementia
If a person with dementia has not set up a Lasting Power of Attorney or Enduring Power of Attorney, a carer can apply to the Court of Protection to become their deputy.