BackLasting Power of Attorney Factsheet
A lasting power of attorney (LPA) is a legal document that lets a person (known as the donor) appoint someone they trust as an ‘attorney’ to make decisions on their behalf should they lose the mental capacity to make decisions for themselves at a later date. Many people with dementia choose to put such an arrangement in place and in this way the person can have peace of mind that their affairs are in the hands of a person that they can trust to honour their decisions and wishes.
The power of LPA was introduced by the Mental Capacity Act 2005.
A LPA can be drawn up at any time while a person still has capacity. However, it has no legal standing until it is registered with the Office of the Public Guardian.
The only necessary condition when drawing up an LPA is that the person concerned is in full charge of their mental faculties and able to make the decision themselves.
Types of LPA
There are two types of LPA:
- A property and affairs LPA allows a person to choose someone to make decisions about how to spend their money and the way their property and affairs are managed.
- A personal welfare LPA allows a person to choose someone to make decisions about their healthcare and welfare. This includes decisions to refuse or consent to treatment on their behalf whereupon it is usually linked to an advance decision. These decisions can only be taken when the LPA is registered and the person lacks the capacity to make the decisions his/herself.
Who can have LPA?
The Act allows a person to appoint someone with lasting powers of attorney to act on their behalf. An attorney must be over 18 and can be a family member, friend, care worker or professional.
The person appointing the LPA needs to seriously consider who they should grant the power to. They should only choose people they can trust to act in their best interests.
The law allows a person to appoint two or more lasting powers of attorney. This is often done to ensure that someone will survive the person and be able to act in the LPA capacity. It can also be done to ensure that there is no abuse of the responsibility.
What can the attorney actually do?
A person who is granted LPA for personal welfare may make any decision that the donor could have made about their welfare, including decisions about where to live and about what care services are needed. They can access personal information such as medical records and are able to give and refuse consent to medical treatment (with the exception of life sustaining treatment) according to the donors best interests.
However, the attorney can only make these decisions if the donor does not have the mental capacity to make the decisions for themselves and they cannot just do whatever they like. As with care professionals, the attorney must follow the principles of the Mental Capacity Act 2005 according to which:
- a person must be assumed to have capacity unless it is established that the person lacks capacity
- a person is not to be treated as unable to make a decision unless all practicable steps to help the person to do so have been taken without success
- a person is not to be treated as unable to make a decision merely because the person makes an unwise decision
- an act done, or decision made, under the Mental Capacity Act for or on behalf of a person who lacks capacity must be done, or made, in the person’s best interests
- before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The actions of those with a registered lasting power of attorney with regard to people who are incapable are overseen by receivers appointed by the Court of Protection.
An attorney cannot make decisions about life-sustaining treatment for a person unless this is expressly stated in the LPA and specified in a valid advance decision. In this context life-sustaining treatment means any treatment that a doctor considers necessary to sustain life and whether or not a treatment is life-sustaining will depend on the circumstances of a particular situation. Some treatments will be life-sustaining in some situations but not in others.
How should a LPA be registered?
The person or their attorney can apply to the Public Guardian to register the LPA at any time after the LPA has been made. It can even be registered by the attorney after the person has lost capacity.
Before the application to register the LPA is made, the people named as being entitled to receive notification of the application must be told by the person who wants to register it.
The Public Guardian will give notice that the application has been received to:
- the person making the application (known as the donor)
- the attorney or attorneys.
Relatives will not be notified of the application to register the LPA unless they have been named them as being persons who should be given notice.
Anyone who has been notified can object to the LPA being registered.
Once the LPA is registered it continues indefinitely.
More details about registration can be found on the Office of the Public Guardian website at: www.publicguardian.gov.uk.
What is enduring power of attorney?
LPA replaced the enduring power of attorney (EPA) on 1 October 2007. A person given power under an EPA before 1 October 2007 can still use it and apply to have it registered. This person has a duty to apply to register the EPA as soon as they believe that the person it applies to is becoming or has become mentally incapable of making decisions.
Any person who has an unregistered EPA and still has the capacity to make decisions for themselves may be advised to make a Personal Welfare LPA to run alongside it.
What is the Court of Protection?
The Court of Protection is a court that was set up to have jurisdiction over the Mental Capacity Act and lasting powers of attorney. Judges from the Court of Protection are able to hear cases covering all areas of decision-making and can determine whether a person has capacity in relation to a particular decision, whether a proposed action would be unlawful, and the meaning or effect of a lasting powers of attorney in disputed cases.
The Court is supported by appointed deputies who are able to take decisions on welfare, healthcare and financial matters as authorised by the Court but are not able to refuse consent to life-sustaining treatment.
Can a power of attorney be cancelled?
Powers of attorney can be cancelled if they are no longer required or if the donor changes their mind.
An LPA can be cancelled by the donor if they have the mental capacity to do so. If there is a dispute about whether the LPA has been cancelled, the Court of Protection has the authority to make a decision.
A property and affairs LPA is revoked if the donor or the attorney becomes bankrupt but bankruptcy does not terminate a personal welfare LPA.
An unregistered EPA can be cancelled if the donor has the mental capacity to do so, without applying to the Court of Protection. However, in the case of a registered EPA the donor must explain why the EPA needs to be cancelled and must show the Court of Protection that:
- they understand who the attorney is and what powers they have, and
- that they understand the effect of the cancellation.
An EPA is also revoked if the donor or the appointed attorney becomes bankrupt.
How is a LPA set up?
A person can use a solicitor to set up an LPA or can get help to do this from an independent advocate, but this is not mandatory. They can obtain an application form from the Office of the Public Guardian website or they can be bought from solicitors or even from major stationers.
The application must be supported by someone who knows the donor but is independent of the application (i.e. is not mentioned in the LPA or connected to the donor or the proposed attorney) and who can testify that the donor has the mental capacity to fully understand what they are doing and the implications of the LPA.
Where a person has complex or contested personal affairs, or wishes to make an advance decision that is not supported by others such as family and carers, then they should always be advised to gain independent professional legal advice.
A paid carer (such as a care home manager or member of care home staff) should not usually agree to act as an attorney other than in exceptional circumstances, for example if the carer is also the only close relative of the donor. In such cases legal advice should be obtained.
Date: January 2024
Version: 5 (Review)
Source: ECM