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LASTING POWERS OF ATTORNEY
GUIDANCE NOTES
Longmores, Solicitors
24 Castle Street, HertfordSG14 1HP
Tel: 01992-300333
(Nichole Giddings)
(Produced October 2007)
1.The Mental Capacity Act 2005
The Mental Capacity Act 2005 (MCA 2005) provides a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future.
One of the major changes effected by the MCA 2005 is to encourage and empower people to make decisions for themselves, whenever and wherever possible and everyone should be aware that they and anyone working with and caring for adults who lack capacity must comply with the MCA 2005.
For instance, the capacity of a person making a Power of Attorney (Donor) may vary according to the particular decision to be taken at the particular time. By way of example, a Donor may be able to make decisions about household spending but not about selling his or her home. One month later their capacity to make these decisions may have changed – either improved or become worse. This means that there will not generally be any one point where a person loses capacity to make all decisions and therefore there is no one point when the Donor stops acting and the person or people they have appointed (Attorney(s)) takes over. Instead, the MCA 2005 sets out a joint approach where the Attorney(s) and the Donor work together. The starting assumption must always be that a Donor has the capacity to make a decision, unless it can be established that they lack capacity and a Donor should not be treated as unable to make a decision unless all practical steps to help him or her do so have been taken without success.
Your Attorney(s) cannot do whatever they like. They must follow the principles of the MCA 2005, which are:-
- A Donor must be assumed to have capacity unless it is established that the person lacks capacity;
- A Donor is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success;
- A Donor is not to be treated as unable to make a decision merely because (s)he makes an unwise decision
- An act done, or decision made, under the MCA for or on behalf of a Donor who lacks capacity must be done, or made, in the Donor’s best interest; and
- 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 Donor’s rights and freedom of action.
Where it is established that the Donor lacks the capacity to make a particular decision, Section 4 of the MCA 2005 requires the Attorney to act in the Donor’s ‘best interests’. The MCA 2005 sets out a checklist of factors that should always be considered by a person deciding what is in the best interests of a person who lacks capacity. This includes, amongst other considerations:-
- consulting, where appropriate, with the relatives, carers and others who have an interest in the Donor’s welfare
- where reasonably practical, permitting and encouraging the Donor to participate as fully as possible or, if this is not possible,
- improving the Donor’s ability to participate in making the decision. This could involve deferring making a decision or setting up further assistance in order to enable the Donor to make a decision. This may be particularly relevant in relation to Health and Welfare LPAs mentioned below as these will only operate where the person lacks capacity to make the decision.
The MCA 2005 created a new type of Power of Attorney known as the Lasting Power of Attorney (LPA) and on 1st October 2007 these came into being.
2.General Powers of Attorney
As was the case prior to the MCA 2005, Donors wishing to appoint someone to look after their financial affairs for them can still make General Powers of Attorney, but if the Donor for whatever reason loses the ability to give instructions to their Attorney(s) on how to deal with their financial affairs, the document becomes invalid. The only documents that can continue to operate if the Donor becomes mentally incapacitated are Enduring Powers of Attorney (EPAs) if already made or Lasting Powers of Attorney (LPAs) (see the notes below).
3. Enduring Powers of Attorney
Existing Enduring Powers of Attorney created prior to 1st October 2007 will continue to operate for the lifetime of the Donor. As has always been the case with EPAs, if the Attorney(s) believe that the Donor is losing or has lost their mental capacity to look after their own financial affairs, the Attorney(s) have a duty to register the EPA with the Office of the Public Guardian (OPG), although it can be used by the Attorney(s) at the direction of the Donor without being registered with the OPG.
4. Lasting Powers of Attorney
An LPA enables a person aged 18 or over to appoint another person or persons to act on their behalf, following the principles of the MCA 2005, if they subsequently lose capacity. This has replaced the EPA as the type of power of attorney that can operate after a person ceases to have capacity.
Unlike EPAs, a person can choose to delegate decisions affecting their personal welfare as well as decisions concerning their property and financial matters. These are two very different areas so there are two types of LPAs:
- A Property and FinancialAffairs LPA
which allows the Attorney(s) authority to deal with the Donor’s property and finances, including the buying and selling of property, operating a bank account, dealing with tax affairs, and claiming benefits as specified. It is similar to an EPA, but more flexible.
Within the Power, you can name up to five people who you would like to be notified when an application to register the Power is made. These can be family or friends. If you do not want anyone to be notified of the registration then two Certificate Providers (see below) will be required.
- A Health and Welfare LPA
which allows the Attorney(s) to make welfare and health care decisions on the Donor’s behalf, but only when the Donor lacks mental capacity to do so themselves.
If you make a Health and Welfare LPA that does not contain any restrictions or conditions then, once the LPA is registered, if you lose capacity to make a decision, your Attorney(s) will be able to do anything that you can now do in relation to your personal welfare. This might include:
- Deciding where your permanent place of residence should be;
- Deciding what care and accommodation may be appropriate for you;
- Consenting to any medical treatment or procedure or therapy of whatever nature for your benefit and providing access for that, or refusing such consent;
- Deciding, alone or with others, on the level of care which you may require;
- Making decisions about your dress, diet and personal appearance, as appropriate;
- Choosing your social and structural activities;
- Arranging for you to undertake work, education or training;
- Taking you on holiday or authorising someone else to do so;
- Consenting to you being involved in certain types or research that meet the strict rules set out by the Mental Capacity Act 2005.
As with the Property and Affairs LPA you can name up to 5 people you would like to be notified when an application to register the power is made.
Life-Sustaining Treatment
Your Attorney(s) cannot make decisions about life-sustaining treatment for you unless you expressly state that in your LPA. Life-sustaining treatment means any treatment that a doctor considers necessary to sustain your life. Life-sustaining treatment is not a category of treatment. 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; the important factor is if the treatment is needed to keep you alive. In the LPA you must specify whether you are giving your Attorney(s) this power.
If you do not say that your Attorney(s) can make decisions about life-sustaining treatment, the doctor in charge of your treatment will make the decision in your best interests. Where practicable and appropriate, your doctor will take into account the views of your Attorney(s) and other people interested in your welfare as part of the best interests assessment. This is what happens in all cases where there is nobody authorised to take decisions on your behalf. However, if you have a separate valid and applicable advance decision, that should be followed by the doctor.
It is essential that you give this aspect very serious and important attention. The guidance notes produced by the Office of the Public Guardian describe what is life-sustaining treatment in the following words:
“Life-sustaining treatment means any treatment that a doctor considers necessary to sustain your life and it will depend on the circumstances of a particular situation.
Examples of life-sustaining treatment might include:
- A serious surgical operation, e.g. a heart bypass;
- Receiving chemotherapy, radiotherapy or undergoing surgery to treat cancer; or
- An organ transplant.
But life-sustaining treatment could also include more day-to-day procedures or treatments – for example, a course of antibiotics if you have breathing problems and develop pneumonia.
Whether treatment is life-sustaining or not will depend on the situation. The important factor is if the treatment is needed to keep you alive.
Life-sustaining treatment usually also includes artificial nutrition or hydration (ANH).
ANH is food and water that is given to someone other than through their mouth, usually through a tube but sometimes directly into the veins.
It does not mean eating and drinking by mouth.
If you allow your Attorney(s) to make decisions about life-sustaining treatment this may mean making decisions about whether or not to withdraw treatments, including ANH, in situations where that treatment has become burdensome or is not effective.”
You can include restrictions or conditions in your LPA that allow you to decide which decisions you want your Attorney to make.
- You may want to add a condition to your LPA so that your Attorney must act in a particular way. For example, you could say that your Attorney must always talk to a particular person before making a decision about where you live.
- You may also want to limit the powers your Attorney has. For example, you could include a restriction that your Attorney can only make decisions about your social care but not about any aspect of your health care, or vice versa.
- You may also consider setting out guidance for your Attorney when making decisions in your best interest.
You should think carefully about how you word any restrictions or conditions that you include in your LPA. To ensure that health and social care staff and other professionals can follow them effectively in the future, they should be straightforward, easy to understand and capable of being put into practice.
You should remember that restrictions and conditions are there for your Attorney to follow when making decisions on your behalf and in your best interests. They are not intended to act as statements of your intentions for people other than your Attorney to follow.
You may wish to discuss the types of restrictions and conditions you want to include in your LPA with a health or social care professional.
Your Attorney can only use your LPA when it has been correctly completed, signed and witnessed and has been registered with the Office of the Public Guardian.
Both forms are divided into three parts:
PART A – Donor’s statement
This part of the form includes: the Donor’s details; details of the Attorney(s) being appointed and how they are to act; details of the persons to be notified when an application to register the LPA is made and a number of statements which must be confirmed by the Donor.
PART B – Certificate Provider’s statement (See notes on page 11)
This part must be completed by an independent third party (known as the Certificate Provider) after he or she has discussed the contents of the LPA with the Donor without, if possible, anyone else present. The Certificate Provider must confirm that in his or her opinion the Donor understands the purpose and scope of the LPA, no undue pressure or fraud is involved in the decision to make the LPA and there is nothing else to prevent the LPA being created.
Part C – Attorney’s Statement
Each Attorney named in Part A of the LPA must complete a separate statement confirming that he or she understands their duties and obligations as an Attorney. Both LPA forms also include information, which must be read by the Donor, Certificate Provider and Attorney(s).
Choice of Attorneys
It is important that the Donor chooses the Attorney(s) with care, as he or she will want to ensure that they are not only trustworthy, but that their wishes are carried out. For example, if the Donor is concerned there may be a family conflict over decisions made or where the Donor’s assets may be more substantial or complex than family members are accustomed to handling, it may be better for the Donor to choose Attorney(s) they are confident will ensure that finances or wellbeing is taken care of and wishes are carried out. It is also worth considering that the appointment of a sole Attorney, whether this be for a Property and Financial Affairs LPA or a Health and Welfare LPA, may provide greater opportunity for abuse and exploitation than appointing more than one Attorney.
If the Donor wants to make both a Property and Financial Affairs LPA and a Health and Welfare LPA, they do not have to appoint the same Attorney(s) for each LPA.
Where more than one Attorney is to be appointed for a Property and Financial Affairs LPA or for a Health and Welfare LPA, they must be appointed to act together (jointly), together and independently (jointly and severally) or together in respect of some matters and together and independently in respect of others.
Please note that an LPA with joint Attorneys will terminate if any one of the Attorneys does not want to continue to act, dies, becomes bankrupt (this only applies to property and affairs LPAs) or lacks capacity. As a matter of course, Longmores makes a bankruptcy search against all Attorneys on your behalf prior to the document being signed. An LPA will also terminate with the dissolution or annulment of the marriage or civil partnership between the Donor and the Attorney (unless it specifically states otherwise in the LPA). However, joint appointments may provide a safeguard against possible abuse, since each Attorney will be able to oversee the actions of the other(s).
Where there is a joint and several appointment, however, the LPA will not be automatically terminated, but will continue with the remaining Attorney(s) able to act.
A Donor can appoint a replacement Attorney to act if one or any of the Attorneys cannot continue to act. If the Donor of a Property and Financial Affairs LPA or a Health and Welfare LPA wants to appoint a replacement Attorney, he or she can appoint as many replacements as they like. The Donor should set out clearly how they are to be appointed and how they are to act. It is important that the Donor chooses someone they know well and trust to make decisions in their best interests in the same way as would be the case for their first choice Attorney(s).
Where a professional Attorney is appointed, for example a Solicitor, it is recommended that their current terms and conditions of business (including charging rates and the frequency of billing) are discussed with and approved by the Donor at the time of granting the power. The prescribed forms for both Property and Financial Affairs LPAs and Health and Welfare LPAs include a section where the Donor can confirm that they have agreed to their Attorney being paid a fee and they can also set out the arrangements which have been agreed.
To enable the Lasting Power of Attorney to be used when required it has to be registered with the Office of the Public Guardian and prior to the application being made the named persons should be notified in the unlikely event that they will object to the appointment and/or the registration. This is a safeguard set in place by the Court for people who have been pressurised into appointing inappropriate Attorneys.
The Duty of an Attorney
An Attorney has a duty to act within the scope of his or her powers set out in the LPA - but the authority conferred by the LPA is also subject to the provisions of the MCA 2005. Attorneys also have a duty:
- of care
- to carry out the Donor’s instructions
- not to take advantage of the position of the Attorney
- not to delegate unless authorised to do so
- of good faith
- of confidentiality
- to comply with directions of the Court of Protection
- not to disclaim without complying with the relevant guidance
In relation to property and financial affairs LPA there is also a duty to