Lasting power of attorney
A lasting power of attorney (LPA) is a legal document which allows individuals to give people they trust the authority to manage their affairs if they lack capacity to make certain decisions for themselves in the future.
To set up an LPA a person must be 18 or over, and have the mental capacity to decide to do so. The person the LPA is set up for is known as the donor.
The person chosen to make decision on behalf of the donor is known as the attorney. The attorney must also be over 18 and must themselves have the mental capacity to act as an attorney. For property and financial affairs LPAs, the attorney must not be bankrupt.
Types of LPA
There are two types of LPA:
- health and welfare
- property and financial affairs
Health and welfare LPA
This LPA gives the attorney the power to make decisions about the donor’s health and care. It covers day-to-day decisions like food and drink, clothing and activities, and bigger decisions such as where to live, and whether to receive medical treatment. It can only be used when the donor has lost the mental capacity to make the relevant decision for themselves.
Property and finance LPA
This gives an attorney the authority to make decisions about the donor’s property and money. Again, this can be day-to-day decisions, such as paying a bill, or more complex financial decisions, such as selling the donor’s property or shares. A donor can choose for it to be used either when they lack mental capacity to make the relevant financial decision for themselves, or as soon as the LPA is registered.
Both types of LPA give the donor flexibility as to what decisions they want the attorney to have the power to make, so it is important for social care and health staff working with an LPA to know exactly what is and is not contained within it.
What makes an LPA valid?
To be legally valid, the LPA must be registered with the Office of the Public Guardian (OPG) before use. When shown an LPA, you should check whether the LPA is registered. [hyperlink to OPG content]. Additionally, to check if an LPA is valid you can search OPGs register.
The Myth of Next of kin
Professor Keith Brown, Director of the Centre for Post-Qualifying Social work, Bournemouth University, dispels the commonly held belief that being a near relative of someone gives you the right to make decisions on their behalf should they lose mental capacity. He sets out the importance of Lasting Powers of Attorney and Advance Decisions to Refuse Treatment, both part of the Mental Capacity Act, as the best ways to maintain your control over decision-making.
Enduring powers of attorney (EPAs)
Before implementation of the Mental Capacity Act (MCA) in 2007, enduring powers of attorney (EPAs) gave similar rights as a property and finance LPA; EPAs do not cover health and welfare rights. It has not been possible to make a new EPA since the MCA came into force, but ones signed and dated before 2007 can still be registered, and registered EPAs remain applicable and valid.
Unlike LPAs, EPAs can be used before they have been registered. However, they must be registered with OPG when the donor is losing, or has lost, capacity to manage their own affairs.
When creating their EPA, some donors may have added a restriction to state that it can only be used if there is medical evidence to show loss of capacity. In these cases, an attorney who is using an EPA before it has been registered may be breaking the terms of the deed. Therefore, it is important that you read the EPA when it is presented to you.
Choosing an attorney
A donor can appoint anyone they like as an attorney provided they are an adult with mental capacity, and not bankrupt if appointed for a property and financial affairs LPA. Typically, family members or close friends are chosen. Some people may choose to appoint professionals (for example, solicitors or accountants) to act as their property and finance attorney.
Sometimes just one attorney is appointed, but more can be chosen. If there is more than one attorney, the donor can decide whether the attorneys must act either:
- ‘jointly’ – which means all decisions must be made together
- ’jointly and severally’- where some decisions have to be made together, but some can be made separately.
For example, some property and financial affairs LPAs may specify that the attorneys must act ‘jointly’ when selling property, but the attorneys can act ‘jointly and severally’ for all other transactions. Similarly, a health and welfare LPA may specify that the attorneys must work ‘jointly’ when deciding where the donor should live.
As a care provider or health professional, it is important that you understand what the LPA of the person you’re supporting actually says, so that the donor’s instructions are respected.
Conditions and restrictions
Donors can outline specific restrictions and conditions for the attorneys to follow when:
- supporting them to make decisions
- making decisions on their behalf when they are unable to make the decision even with support where the donor is unable to make
Conditions are general wishes that the donor would like the attorneys to uphold if possible.
Restrictions specify what attorneys must do when making, or supporting the donor to make decisions.
Conditions and restrictions are also referred to as preferences and instructions.
Examples of conditions (preferences)
Health and welfare:
- ‘I prefer to live within five miles of my sister.’
- ‘I would like my pets to live with me for as long as possible.’
Property and financial:
- ‘I would like to invest in ethical funds.’
- ‘I would like to donate £200 each year to an animal protection charity.’
Examples of restrictions (instructions)
Health and welfare:
- ‘My attorneys must ensure I am only given Halal food.’
- ‘My attorneys must not decide that I should live in a care home unless my doctor believes that I can no longer live independently.’
Property and finance:
- ‘My attorneys must not sell my home unless my doctor believes that I can no longer live independently.’
- ‘My attorneys must send my monthly bank statements to my brothers and sisters.’
Although conditions and restrictions should be respected by attorneys and professionals, the Court of Protection may overrule those written into an LPA if they are not considered in their best interests.
Anyone acting as an attorney has a legal duty to act in the best interests of the donor, and to follow the MCA Code of Practice and the five principles of the MCA.
An attorney must only make decisions that they have been given the authority to make. This means that:
- They cannot make a decision individually, if the LPA specifies decisions must be made jointly
- They cannot make a decision about someone’s health and welfare if the donor has the mental capacity to make it themselves
The attorney must stick to the relevant type of LPA, and only make financial decisions if they’re the property and financial affairs attorney, and only make health and welfare decisions if they‘re the health and welfare attorney (recognising of course that many people will be both).
If a health and welfare attorney is involved in a decision about life-sustaining treatment, you should check that they’re only making decisions that they have the authority to make.
Attorneys can only make decisions on behalf of the donor if their authority covers the decision in question. However, attorneys may know the donor’s past and present wishes and feelings, and should be involved in broader best interests considerations.
If the donor has made an advance decision to refuse treatment, this cannot be overruled by the attorney, unless the LPA was set up later and covers the decision in question (The MCA covers advance decisions and the implications of an LPA).
If an attorney is trying to act beyond their powers, or is not acting in the best interests of the donor, you must report this to OPG. They will investigate, and if necessary, apply to the Court of Protection to remove the attorney. If there is immediate risk to the donor then a referral to the police or social services may be the priority, before a referral to OPG.
Ending an LPA or EPA
An LPA or EPA can be cancelled by the donor at any point, as long as they have the mental capacity to make this decision. LPAs/EPAs are cancelled through OPG and the attorney will be asked to return the legal document to OPG. Attorneys can also disclaim from their duties at any point. A court order can also cancel an LPA or EPA.
An LPA or EPA will end when:
- the donor dies
- the attorney dies and a replacement attorney was not named in the document
- an attorney loses mental capacity to make the relevant decisions; unless there is a replacement attorney or there is more than one attorney, and the donor did not state that attorneys must act jointly. If all attorneys lose mental capacity then the LPA or EPA would end
- any marriage or civil partnership between the donor and the attorney ends- if the LPA doesn’t state that the attorney (donor’s spouse) can continue
- if an attorney of a property and finance LPA becomes bankrupt
- if an attorney disclaims from their duties where there is more than one attorney named in the LPA, the LPA would cease to exist if the donor had specified that the attorneys must act jointly.
For more information about LPAs or EPAs, go to the GOV.UK website.