Councils and the NHS have a duty to offer Direct Payments to all eligible people.
This includes people who lack the mental capacity to consent to them; where there is an ‘Authorised Person’ to receive and manage such payments on their behalf; and where it would be in their best interests to have Direct Payments.
You may be considering acting as an ‘Authorised Person’ to receive Direct Payments on behalf of someone who does not have capacity. This Factsheet will tell you about what an authorised person does.
Being appointed as an ‘Authorised Person’
- Your local Council or NHS team must follow legislation and guidance on how to appoint an authorised person.
- you must meet all the criteria set out in the funding authority’s policy and the local Council/NHS checklist for appointing an authorised person
- you will act as the authorised person on behalf of an adult who lacks mental capacity to consent to receive Direct Payments
- you must be willing and want to act as an authorised person
- you can have support to manage the Direct Payments
Your Role and Responsibilities are as follows:
- you must follow good practice in making decisions on behalf of the person who lacks capacity and act in their best interests
- you will be accountable for the way the Direct Payments are used
- you should involve the person who lacks capacity as far as reasonably practicable and give them as much control and independence as possible
- you agree to inform your local Council or NHS of any changes or difficulties, or as soon as you believe the person has regained capacity
- if the person you represent has fluctuating capacity, you must ensure that you involve them as much as practicable in decisions during periods of capacity
- you will sign an Agreement with your local Council or NHS relating to the use of the Direct Payments and you must keep to its terms
- you agree to use the Direct Payments to purchase and obtain the services necessary to meet the needs of the person who lacks capacity, as agreed by your funding authority
- when making these arrangements it may involve legal responsibilities such as employing staff. You must ensure you act lawfully as an Employer. Advice and information on this can be obtained from Independent Lives
- if you use an agency, please ask your Adviser for the relevant Factsheet for advice on how to use agencies and keep safe
- if you decide to give up acting as the authorised person, you must contact your local Council/NHS team straight away
If you plan to use the services of a family member or someone living in the same household as the person needing care, then you must gain permission for the council first.
You will need to keep the Direct Payment funds separate to any other finances, this is usually done via a virtual account or prepaid card, occasionally, a separate bank account is required.
Whilst the local Council or NHS will not want to discourage you from acting on behalf of an individual who lacks capacity, they must ensure that anyone who acts as an authorised person is aware they may be guilty of fraud if they dishonestly abuse their position, intend to benefit themselves or others and cause loss, or expose the person to risk or loss.
The Fraud Act 2006 created an offence of ‘abuse of position’. This applies when someone is expected to safeguard the interests of a person but instead acts against their financial interests. Such a person can be found guilty of a criminal offence.
Independent lives strongly advises that Disclosure and Barring Service (DBS) checks are undertaken for anyone employed to provide services for an individual who lacks capacity. There are occasions where it is mandatory to have a DBS check in place such as when support work is being carried out with children.
You may be asked to undertake a DBS check if you wish to be an appointed authorised person. If requested, you cannot be appointed until the DBS check has been completed.