Acting as an Authorised Person

Your local Council or NHS team is required to adhere to legislation and guidelines when appointing an authorised person. 

To be eligible, you must meet all the criteria outlined in the funding authority’s policy and the local Council/NHS checklist for appointing an authorised person. 

You will serve as the authorised person for an adult who lacks the mental capacity to consent to receiving Direct Payments. 

You must be willing and have the desire to take on the role of authorised person, and you can receive support in managing the Direct Payments. 

- You must make decisions on behalf of the person who lacks capacity in line with best practice and always act in their best interests. 

- You will be responsible for ensuring that the Direct Payments are used appropriately. 

- It is important to involve the person who lacks capacity as much as possible and give them as much control and independence as you reasonably can. 

- You must inform your local Council or NHS of any changes, difficulties, or if you believe the person has regained capacity. 

- If the person has fluctuating capacity, you must involve them in decision-making as much as possible during periods when they have capacity. 

- You will need to sign an Agreement with your local Council or NHS regarding the use of the Direct Payments and must comply with its terms. 

- You agree to use the Direct Payments to purchase services that meet the needs of the person who lacks capacity, as agreed with your funding authority. 

- Arranging these services may involve legal responsibilities, such as employing staff. It is important to ensure that you act lawfully as an employer. You can seek advice from Independent Lives on this. 

- If you use an agency, ask your Adviser for the relevant Factsheet to get guidance on how to use agencies safely. 

- If you choose to stop acting as the authorised person, you must notify your local Council or NHS team immediately 

You must keep the Direct Payment funds separate from other finances. This is typically done using a virtual account or prepaid card, and occasionally, a separate bank account may be required. 

While the local Council or NHS encourages you to act on behalf of the person who lacks capacity, they must ensure that anyone in this role is aware that dishonestly abusing the position for personal gain, causing harm, or exposing the person to risk or loss could result in a fraud charge. 
Under the Fraud Act 2006, the offence of ‘abuse of position’ applies when someone who is expected to safeguard a person’s interests instead acts against them. This could lead to criminal charges. 

It is strongly recommended that Disclosure and Barring Service (DBS) checks be carried out for anyone employed to provide services to an individual who lacks capacity. In some cases, such as when providing support for children, a DBS check is legally required. 

If you wish to be appointed as an authorised person, you may be asked to undergo a DBS check. You cannot be appointed until the check has been completed.