Lasting Powers of Attorney come in two distinct varieties: ‘Property and Financial Affairs’ and ‘Health and Welfare.’ Anyone aged 18 or over who does not lack capacity can choose to make either or both. The person can give decision-making powers to a person or more than one person of their choice, as long as they too are aged 18 or over.
An LPA for health and welfare must show clearly if the attorney has been given the power to make decisions on behalf of the person about consenting to or refusing life-sustaining treatment, if/when the person loses the capacity to make this decision. The LPAs are created on forms available from the Office of the Public Guardian, where there is helpful guidance and advice on how to do this. Remember that staff of a care provider cannot provide wording, or witness signatures, for anyone receiving their services, unless the person happens to be a close relative; take legal advice if this arises.
Deputyships are created by the Court of Protection, to make certain decisions, as described in writing by the Court, that might arise when someone has lost capacity for those decisions but no relative or friend has been given relevant powers through LPAs. A deputy is given similar powers to those of an LPA attorney but, unlike an LPA attorney, a deputy can never have the power to consent to or refuse life-sustaining treatment on behalf of the person lacking capacity. This is because the person chooses an LPA attorney for themselves, whereas the Court has chosen and appointed a deputy. If someone lacks capacity for this decision, it becomes a best interests decision made – following consultation – generally by the professional responsible for giving or withholding the life-sustaining treatment.
How and when should someone appoint attorneys under a Lasting Power of Attorney?
Many people hate the thought of decisions about them being made by professionals who may not share their views or take the time to understand their values or beliefs. By giving powers under an LPA to a trusted relative or friend, people can give to this person the right to make decisions. LPAs are of two kinds, and a person can make either or both, provided they are aged at least 18 and have the capacity to do so.
See MCA Code of Practice, Chapter 7 and guidance from the Office of the Public Guardian on LPAs and Deputies.
When does an LPA come into effect?
The overriding requirement is that any LPA must be registered with the Office of the Public Guardian before it can be used. Within that, a financial LPA can be used while the ‘donor’ (person who makes it) still has capacity; a health and welfare LPA can only be used if the donor lacks capacity.
What is the position of an LPA if someone’s capacity fluctuates?
If someone’s capacity fluctuates, and decisions may be needed when the person lacks capacity to make them, the LPA should be registered with the Office of the Public Guardian (see OPG website and MCA Code of Practice, Chapter 7). The attorney(s) can then act where necessary but must step back and allow the person to make their own decisions when they can do so.
What are the legal powers of an LPA attorney?
A person acting under powers given by an LPA which has been registered with the Office of the Public Guardian must, like anyone else making decisions for or about someone lacking capacity, act in the person’s best interests. Like care or health staff, they are bound to act within the MCA and ‘have regard to’ the MCA Code of Practice.
They are often described as standing in the shoes of the person who has given them the powers. An attorney acting under a health and welfare LPA can decide on the person’s diet, in accordance with their best interests. For example, the attorney for health and welfare knows intimately how important the person’s religion and culture are to them; they can decide if the person now lacks capacity to remember the dietary rules of their religion, that they should continue to be given meals that conform with their religious culture. They can decide on the person’s social contacts and activities. If the LPA specifically allows, they can make a best interests decision to start, continue or refuse life-sustaining treatment which might be offered, provided they are acting in the best interests of the person.
How can a provider find out if a person lacking capacity has an LPA, or a Deputy?
In general, relatives or friends will tell you and be happy to share the provisions of any powers they have been given by the person. They should give you a certified copy of the LPA if, as is likely, you will probably have to abide by its provisions, in how you make professional decisions. Your protection from liability can come from compliance with the MCA, so you do need clarity one what powers have been given to which relatives and friends, or professional attorneys or deputies. If you cannot gain clear information about LPAs or deputies and their powers, the Office of the Public Guardian can inform you who holds valid powers..
What protections are there for the donor of an LPA?
The attorney(s) must make best interests decisions in accordance with the MCA and is specifically bound to ‘have regard to’ the MCA Code of Practice. This means that they must consult as appropriate, including for relevant decisions, providers of health or social care. Anyone who has concerns that an LPA attorney or a deputy is failing to act in accordance with the MCA, or is abusing the donor in some way, must raise a safeguarding alert with the Office of the Public Guardian which regulates LPA attorneys and deputies. You can also contact:
- Jobcentre Plus for concerns about benefits
- your local adult social services for concerns about care or safeguarding
- the Care Quality Commission or the Care Inspectorate Wales if you’re concerned about someone who’s living in a care home
Call 999 if someone is in immediate danger or your local police if you think someone has committed a criminal offence.
How should providers act when a relative has powers under a property and financial affairs LPA but not under a health and welfare one, or vice versa?
It is completely lawful to give these very different powers to different people. This is why providers should check they understand who has the power to make each decision. Powers only apply when they are specifically given, so a person who has been given, say, only powers to manage the donor’s money in their best interests, cannot make best interests decisions about their health or welfare.
But if a person has been chosen by a donor to make decisions, they must be consulted by someone making a best interests decision: they have been named and trusted by the person for some decisions though not all. As such, a relative with powers under a property and financial affairs LPA, for example, should be consulted and their views should be considered by a care provider when making best interests decisions about activities or diet for someone lacking capacity, and vice versa. If someone has always loved seeing farm animals, or getting their nails professionally done, their financial attorney might be an essential part of ensuring these wishes can be met.
How does an LPA change future decision-making by others?
Lawful powers must be acknowledged and honoured. Staff must know, as appropriate, who has the power to make decisions for people who may lack capacity. Providers and staff must also know how to notify the Office of the Public Guardian of any concerns about abuse by persons acting under LPA powers.
What is the relationship between LPA attorneys’ decision-making and an ADRT?
Rarely, an ADRT covers a decision that can be made by a health and welfare attorney. The rule of thumb is, that whichever was made the most recently is regarded as reflecting the latest views of the person while they had capacity, so takes precedence. Hence a health and welfare LPA attorney may not have the power to make a best interests decision that her aunt should have antibiotics for a chest infection, if, after creating the LPA, her aunt has made an ADRT in this situation.
Providers might profitably do all they can to foresee such a ‘clash’ of decision-makers and seek clarity (while the donor has capacity, if possible) about what they would want to happen. Otherwise, do all you can to ensure a clear recording of what has been decided or, if a situation arises when a provider feels they have been given conflicting instructions, by encouraging the responsible medical authorities, such as the relevant Integrated Care Board, to seek legal advice.
When someone has given powers under an LPA, what should be recorded by a care provider, and how?
Where possible, obtain a certified copy of any registered LPA. If this is not possible, read the LPA and record the details of what decisions the attorney is allowed to make or not, together with the details of how to contact LPA attorneys.
Record what steps have been taken to ensure that relevant staff know about the LPA and its terms so that they do not ignore the rights of attorneys to make the decisions that are theirs to make.
If the person changes their mind, with capacity, about giving someone powers under an LPA, what should be done?
A person has the right to change their mind, and a provider should facilitate their decision-making, for example, if they have mobility or sight issues, by enabling their access to independent legal advice or simply sharing with them how to make a deed of revocation. Details of how to do this are on GOV.UK’s Make, register or end a lasting power of attorney page.