Mental Capacity Act 2005

A general guide on how the Mental Capacity Act affects you and how you can plan ahead for when you no longer have the mental capacity to make decisions for yourself. Applies to England and Wales.

Lasting power of attorney (LPA)

What is a lasting power of attorney?

A lasting power of attorney is a legal document that lets you appoint someone to make decisions for you.

You can use a lasting power of attorney to plan for when you no longer have capacity to make your own decisions, and to make sure that these decisions are handled by someone you trust.

This includes decisions about your:

  • finances
  • property
  • future healthcare
  • future personal care and welfare.

Attorney

The Mental Capacity Act allows you to appoint someone called an attorney under a lasting power of attorney. This attorney does not have to be a lawyer or someone with specialist knowledge. So you could name someone like your partner, a family member, a friend or a professional.

This attorney has the legal power to:

  • make certain decisions for you
  • continue to make decisions for you after you have lost capacity to make the decisions for yourself.

What decisions can my healthcare attorney make for me?

A healthcare attorney can only make decisions for you when you’re unable to make these decisions for yourself.

They can also decide about:

  • your daily routine (for example, eating and what to wear)
  • routine medical care – when and where this should happen
  • moving into a care home
  • life-saving or life-sustaining treatment.

The exact decisions they can take for you depends on what you put in your lasting power of attorney.

Refusing medical treatment decisions

You can give your healthcare attorney power to refuse certain treatments for you.

For example:

But your healthcare attorney will not be able to refuse treatment for you if:

  • You are sectioned under the Mental Health Act in the future, and your treatment is prescribed by the responsible clinician or approved clinician in charge of your treatment at that time. Your attorney will have no legal power to refuse the treatment, unless it is electroconvulsive therapy.
  • It is life-saving in an emergency situation (unless you have stated very clearly on your lasting power of attorney form that they can refuse life-saving treatment for you).
  • You have the capacity to refuse the treatment for yourself.

What decisions can my property and financial affairs attorney make for me?

This list is not complete, but some examples are:

  • paying bills
  • claiming or collecting benefits
  • selling your home or flat
  • spending money on your home or flat.

This type of lasting power can be used as soon as it’s registered, with your permission, if you have capacity to give it.

What are the disadvantages of creating a lasting power of attorney?

The disadvantage is that you are giving someone a lot of your personal information, and giving them power to make decisions about your life. That is why it is important to choose someone you can trust to be your attorney.

An attorney under a financial lasting power of attorney... An attorney under a healthcare and personal care lasting power of attorney...

would have access to a lot of information about:

  • your bank account 
  • your finances.

But it might be possible to get your money back if the court decides they have been dishonest or spent your money unwisely.

 

has wide-ranging authority to make decisions for you.

  • They would have access to your personal correspondence and papers such as your medical notes.
  • They might even be able to decide where you live and who you live with.

Should I have a healthcare and personal care attorney?

It is more usual for people to have an attorney to manage their finances than to have a healthcare and personal care attorney. You need to think about whether having a healthcare and personal care attorney is the best way of planning for your long term future.

Some questions to think about might be:

  • Could you make an advance decision or advance statement, to try to make sure your views and preferences are followed?
  • Are there other people you would want to have a say in your future healthcare or personal care? What happens if they disagree? Remember, the attorney is the one who would be making the decisions and would have the final say.
  • What if your capacity to make decisions changes from day to day? If you lost capacity to make important healthcare and personal care decisions, would you get it back in the short term so that you could start making your own decisions again? Would you be happy to let the health and care professionals make important decisions for you in the short term?
  • Is there a person you would trust to make important decisions about medical treatment in the future on your behalf? Would they listen to what the doctors and healthcare professionals would have to say at the time? Would they have your best interests at heart?

Are there any decisions I could not give an attorney power to decide?

You cannot give an attorney the power to:

  • Act in a way or make a decision that you cannot normally do yourself – for example, anything outside the law.
  • Consent to a deprivation of liberty being imposed on you, without a court order.
  • Make a decision that conflicts with a decision of your guardian, which they have the power to make, such as where you will live, if you are under guardianship.
  • Make a decision that goes against any treatment refusals you set out in your advance decision (if you make your advance decision after appointing the attorney).
An attorney under a finance and property lasting power of attorney cannot... An attorney under a healthcare and welfare lasting power of attorney cannot...
  • make decisions about your future healthcare or any personal matters – the only exception is if you have named the same person to be your finance and property attorney, and your healthcare and welfare attorney, on separate forms.
  • make decisions about your finances, business affairs or property matters in the future – again the only exception is if you have named the same person to be your finance and property attorney, and your healthcare and welfare attorney, on separate forms
  • demand specific forms of treatment on your behalf
  • refuse basic nursing care for you, such as keeping you clean or refusing food and drink that is given to you in a natural way
  • refuse life-saving treatment on your behalf, unless this is a power you have clearly given them in your lasting power of attorney.

How do I make a lasting power of attorney?

To make a lasting power of attorney, you (the donor of the power) need to:

  • be aged at least 18 or over, and
  • have the capacity to make the same decisions that you want to authorise someone else to make.

You need to decide whether you want the attorney to make decisions that are:

  • financial and property, or
  • healthcare and personal.

You can name the same person as attorney in both cases, but you will need to fill in two forms, one for the financial and property lasting power of attorney, and another for the healthcare and personal one.

There is a form provided by the Mental Capacity Act which you must use. You can get the form:

Naming a person as your attorney

When you’re deciding who to name as your attorney:

  • make sure the person is 18 or over
  • speak with this person before you name them.

You can name more than one person to act together as attorneys, but you may need to get legal advice to make sure it is valid.                                    

Completing the form

When you get the form you will need to do the following:

  • Name the person or persons you are authorising to act as your attorney(s).
  • Fill out the relevant sections in writing.
  • Have the form witnessed by someone else who is not going to be the attorney.
  • Have the form stamped and executed as a deed (you may need to go to a solicitor for this).
  • Make sure you have included information about the purpose of the lasting power of attorney. This includes what types of decisions you give the attorney authority to make, and what decisions you do not wish them to make.
  • Get the attorney to sign a statement that they have read the information and understand their duties under the lasting power of attorney, including acting in your best interests.
  • Name the people (if any) you would like to be notified when the lasting power of attorney is registered with the Office of the Public Guardian.
  • Include a certificate of capacity from one of the professionals and other people listed on the form.

Financial lasting power of attorney

If you are making a financial lasting power of attorney, you can say that you want the attorney to:

  • only make specific decisions about your property or finance, or
  • have a general power to make decisions about your property and finance.

An attorney under a financial lasting power of attorney cannot make any decisions about healthcare or personal matters on your behalf.

What can I do if my attorney does not follow my instructions?

If your attorney acts dishonestly or doesn’t follow your instructions, you or someone who looks after your interests can:

The Court of Protection can remove the powers of an attorney for:

  • fraud
  • dishonesty
  • failing to act in your best interests
  • not being able to act as attorney through illness or other reasons.

The Court of Protection can also:

  • decide what your lasting power of attorney means and what it gives your attorney power to do, if there is any disagreement about its meaning
  • give instructions on how the attorney should carry out your instructions in your lasting power of attorney.

However, the Court cannot change any of the instructions you put in your lasting power attorney.

What might happen if I decide not to make a lasting power of attorney?

For healthcare and personal decisions:

  • If you have made an advance decision, the healthcare professionals should follow your advance decision and respect any medical treatment refusals you have set out in it.
  • If you have not made an advance decision, or a decision has to be made that is not covered in your advance decision, healthcare professionals will make the decision in your best interests and should consult your partner, close family or anyone else they know plays an important part in your life; they should also consult your advance statement, if you have made one.
  • The court could appoint a deputy although it does not often appoint one to take healthcare or welfare decisions.
  • The court itself could make a one-off decisions or more than one decision.

For finance and property decisions:

  • Someone who is already supporting you to manage your finances and property and affairs could apply to the Court of Protection to be appointed as your deputy.
  • If you have complicated affairs that would be better handled by a single person, a professional acting on behalf of the local authority could apply to the court and the court will appoint as deputy the person they consider to be the most suitable
  • If you are in a care home and do not have any property such as a house or flat to manage, and your income is mainly from benefits, an appointee may be appointed by the Department for Work and Pensions (DWP) to manage your benefits.

There is no law saying that you have to make a lasting power of attorney, so you should think carefully about whether or not you want to make one.

You could choose to make an advance decision and/or an advance statement instead.

 


This information was published in November 2017. We will revise it in 2019.


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