Lasting Power of Attorney, Court of Protection and Appointees

Powers of Attorney

A power of attorney is a legal document that allows a person to give another person authority to make decisions on their behalf. Under a power of attorney the chosen person can make decisions that are as valid as one made by the person. Attorneys have no authority to take actions that result in the person being deprived of their liberty.

There are currently two types of Power of Attorney; Enduring Power of Attorney and Lasting Power of Attorney:

Enduring Power of Attorney (EPA) allows an attorney to make decisions about property and financial affairs even if the person lacks capacity to manage their own affairs. The Mental Capacity Act (2005) (MCA) replaces the EPA with the lasting power of Attorney (LPA). 

EPA’s that were made prior to the MCA coming into force, whether registered or not are still valid. An EPA must be registered with the Office of the Public Guardian (OPG) when the attorney thinks the person lacks capacity, or is beginning to lack capacity to manage their own affairs. It is no longer possible to assign new EPA’s.

Lasting Power of Attorney (LPA) can only be made by an adult aged 18 or over if they have the capacity to do so. A person should think carefully before choosing someone to be their attorney. An attorney should be someone who is trustworthy, competent and reliable.

Before acting under the an LPA, attorneys must make sure the LPA has been registered with the OPG and take all practical and appropriate steps to help the person make particular decisions for themselves. Attorneys must always follow the MCA’s principles and make decisions in the person’s best interest.

There are two types of LPA’s:

  • Personal Welfare LPAs can make decisions about anything that relates to the persons personal welfare which can include healthcare and medical treatment decisions. . A personal welfare LPA can only be used at a time when the person lacks capacity to make a specific welfare decision. Decisions could include things  such as where a person lives, day to day care, consenting to or refusing treatment, assessments for provision of community care and who the person has contact with.

The person can add restrictions or conditions to areas where they would not wish the attorney to have power to act; for example,  only allowing decisions about social care and not health care.  When health or social care staff are involved in planning care for someone who has appointed a personal welfare attorney, they must first assess whether the person has capacity to agree to all or part of the care. If the person lacks capacity, professionals must consult with the attorney and gain their agreement.

If an LPA includes the ability to make health care decisions,  attorneys DO NOT have the right to consent to or refuse treatment in situations where:

  • The person has capacity to make the particular health care decision
  • The person has made an advance decision to refuse the proposed treatment
  • A decision relates to life-sustaining treatment
  • The person is detained under the mental health Act

If healthcare staff disagree with the attorney’s assessment of best interests, they should gain a second opinion and discuss further with the attorney. If an agreement cannot be reached, an application may be made to the court of protection. While the court is coming to a decision, health care staff can give life-sustaining treatment to prolong life or stop the person’s condition getting worse.

  • Property and Affairs LPAs can make decisions about property and affairs, including financial matters. Unless the person states otherwise, once the LPA is registered; the attorney is allowed to make all decisions about the person’s property and affairs even if the person has capacity to make the decisions. The person can state that the LPA will only apply when they lack capacity to deal with their affairs.  It is the person’s responsibility to decide how their capacity should be assessed, e.g. by their GP. Financial institutions may wish to see the written confirmation, before recognising the attorney’s authority to act under the LPA.

The fact that someone has made a Property and Affairs LPA, does not mean that they cannot continue to carry out financial transactions for themselves if they have the capacity to do so. If the person chooses not to restrict decisions the attorney can make, the attorney will be able to make decisions that could include buying or selling property, opening and closing bank accounts, receiving income or inheritance, making gifts on the person’s behalf. An attorney can only make gifts on the person’s behalf, to people that the person is related to or connected to on specific occasions such as birthdays, weddings etc. The value of the gift must be reasonable to take into account the size of the person’s estate.

For more information how to apply for a LPA visit www.gov.uk/power-of-attorney

What should someone do if they think an attorney is abusing their position?

Attorneys are in a position of trust and the person can prevent abuse by carefully choosing a trustworthy attorney. Signs that an attorney may be exploiting the person include, stopping relatives or friends contacting the person, sudden unexplained changes in living arrangements, not allowing healthcare or social care staff to see the person, unpaid bills, opening a credit card for the person, transferring assets to another country or spending money in an unusual extravagant way. Someone who suspects abuse should contact the OPG immediately. In cases of suspected physical or sexual abuse, theft or fraud you should contact the police and the local authority safeguarding team.

Court of Protection

The Court of Protection is a specialist court to deal with decision making for adults who may lack capacity to make specific decisions for themselves and may:

  • Decide whether a person has capacity to make a particular decision
  • Make declarations, decisions and orders on financial and welfare matters affecting people who lack , or are alleged to lack, capacity
  • Appoint deputies to make decisions for people who lack capacity to make those decisions
  • Remove deputies or attorneys who act inappropriately
  • Determine whether an LPA is valid

Deputies for personal welfare decisions will only be required in the most difficult cases, where important and necessary actions cannot be carried out without the courts authority or when there is no other way of settling the matter in the best interest of the person who lacks capacity to make particular welfare decisions, examples include:

  • Serious family disputes that could have a detrimental effect on the persons future care
  • It is felt that there is a serious risk of harm to the person who lacks capacity, if left in the care of the family
  • Someone needs to make a series of linked welfare decisions over time and it would not be beneficial or appropriate to require all of those decision to be made by the court
  • The most appropriate way to act in the persons best interest is to appoint a deputy

If a person who lacks capacity to make decisions in relation to property and affairs and they do not have an EPA or LPA, application to the court is necessary for dealing with:

  • Cash assets over a specified amount
  • To sell a person’s property  
  • If the person has a level of income that the court thinks a deputy needs to manage.

Anybody being considered to appointment as a property and affairs deputy, will need to sign a declaration of their circumstances and ability to manage financial affairs. The declaration will also include the tasks and duties the deputy must carry out.

For more information visit www.gov.uk/courts-tribunals/court-of-protection

Appointee for a person claiming benefits

If the only income of a person who lacks capacity is social security benefits and they have no property or savings there will usually be no need to appoint a deputy through the Court of Protection.

If a person claiming benefits needs support to manage their finances because they lack capacity or are severely disabled, someone can be appointed from the Department for Work and Pensions. The appointee can be an individual such as a friend, relative or an organisation such as the local authority.

For more information on how to apply to become an appointee visit www.gov.uk/become-appointee-for-someone-claiming-benefits

Information sourced from the Mental Capacity Act Code of Practice