Lasting Powers of Attorney – Considerations for providers
What is an LPA (Lasting Powers of Attorney)?
An LPA is a legal document registered with the Office of the Public Guardian, which names another (an ‘attorney’) to make best interest decisions on their behalf (‘the donor’). Anyone who currently has capacity can appoint an attorney to make decisions on their behalf, should they lose the capacity to do so themselves in the future.
An attorney must be 18 or over with capacity and is most commonly a spouse, family member or friend. The LPA must include a certificate completed by an independent third party, confirming the donor had capacity when they appointed the attorney.
What can an attorney do?
This is dependent upon the type of LPA and any restrictions or conditions.
Health and welfare LPAs authorise attorneys to make decisions regarding the donors personal welfare, social activities, residence, day to day care, assessments, contact and medical treatment, yet only where the donor lacks capacity. An attorney cannot overrule an advance decision made by the donor, yet beyond this attorneys potentially have extensive decision making powers in relation to the donor’s health and welfare.
Property and financial affairs LPAs relate to the management of bank accounts, tax affairs, funding entitlement, bills, receipt of benefits and buying or selling property.
It is important that providers are aware of any service users in their care who have an attorney and the LPA should be reviewed to determine what decision making powers they have. For example, if a medical treatment decision is required and the individual lacks capacity, it is important to establish whether a health and welfare attorney has been appointed, or whether the decision must be based upon a best interests analysis under the Mental Capacity Act.
Is the attorney acting in your client’s best interests?
Attorneys must act in accordance with the donor’s best interests, applying the best interests check list (see the Mental Capacity Act 2005 Code of Practice) and consulting those with an interest in the donor’s welfare.
If there are concerns that an attorney is acting contrary to the donor’s best interests, an application can be made to the Court of Protection. The Court of Protection can determine not only the decision in question but also the validity of an LPA, give directions and if required, remove an attorney.
The newsbrief is available in full here.