Lasting Power of Attorney

Sections 9-14 of the Mental Capacity Act set out the role of the Lasting Power of Attorney (LPA).

A Lasting Power of Attorney is a legal instrument whereby a person over the age of 18 who has capacity (referred to as the donor) grants another person (referred to as the  Attorney or donee) the authority to make a decision (or decisions) on their behalf at such time when they lack the capacity to do so.

There are two different types of Lasting Power of Attorney: the first type authorises the attorney to make decisions about the person’s health and welfare and the second type authorises the attorney to make financial decisions.

A Lasting Power of Attorney can only be granted:

1. By a donor from the age of 18 who has the mental capacity to do so; and
2. To an Attorney who is appropriate to hold the position under the Mental Capacity Act.

The Lasting Power of Attorney will set out the scope of the decisions that the attorney is authorised to make. The Lasting Power of Attorney must be made using the prescribed forms. There are different forms for health and welfare decisions and for property and financial affairs decisions.

An attorney under a Lasting Power of Attorney is only permitted to make personal welfare decisions when:

1. The donor is no longer able to make the decision (they lack capacity); and
2. The decision is within the authority set out in the Lasting Power of Attorney.

Under the Mental Capacity Act, anyone from the age of 18 can be appointed attorney under a Lasting Power of Attorney for health and welfare decisions. Where the decision is in respect of property and affairs, a person who is bankrupt or has a debt relief order against their name may not be appointed as an Attorney.

If the decisions set out in the Lasting Power of Attorney only relate to property and financial affairs, the Attorney can also be a trust corporation.

The donor can decide to appoint a single Attorney or multiple Attorneys. Where there is more than one Attorney, the donor must set out:

1. Whether the Attorney must all agree and act jointly; or
2. If each individual Attorney can act independently.

The Lasting Power of Attorney document must set out any specific conditions or circumstances that apply for particular decisions.

If the Lasting Power of Attorney does not set out how joint Attorneys must act, the Mental Capacity Act takes the position that they must act jointly.

The Lasting Power of Attorney cannot authorise an Attorney to appoint a successor or substitute Attorney. This can only be done by the donor themself.

An attorney under a Lasting Power of Attorney cannot:

1. Make a personal welfare decision when the person has capacity to make their own decision; or
2. To make a decision that is not within the authority set out in the Lasting Power of Attorney.

A Lasting Power of Attorney can also not be used when:

1. Before it has been registered with the Office of the Public Guardian;
2. The Lasting Power of Attorney does not clearly authorise the attorney to make the decision (or decisions); or
3. The person granted a Lasting Power of Attorney is not permitted to act under the Mental Capacity Act.

The person arranging the Lasting Power of Attorney must set out the nature of the decisions that the Attorney will be able to make on their behalf. This will be:

1. General decisions relating to the person's personal welfare; and/or
2. Specific decisions relating to the person's welfare; and/or
3. General decisions relating to the person's property and affairs; and/or
4. Specific decisions relating to the person's property and affairs.

Where decisions can be made generally, the Attorney is able to make decisions which are in the donor’s best interests but must refer to the Court of Protection for those decisions that are excluded.

Click here to access guidance about the decisions that can and cannot be made under the Act.

Anyone acting as Attorney has a statutory obligation to apply the Mental Capacity Act before making any decisions where the donor lacks capacity. This includes:

1. Upholding the 5 statutory principles of the Act;
2. Taking reasonable steps to establish whether the person lacks capacity; and
3. Based on the evidence available, having a reasonable belief that the person lacks capacity; and
4. Based on the evidence available, having a reasonable belief that the decision made and/or action being taken is in the person's Best Interests; and
5. Making sure that any decision made does not lead to the unlawful use of restraint or deprivation of liberty.

If the Attorney has the authority to make general decisions regarding property and affairs, they are not authorised to use the money to make gifts to others except:

1. On customary occasions (such as birthdays and religious festivals) to people who are related to or connected to the donor; and
2. To any charity to whom the donor made or can reasonably be expected to have made a gift.

The amount of gift made by the Attorney must be reasonable taking into account all of the circumstances, including:

1. The size of the donor's estate;
2. The nature of the occasion;
3. The nature of gifts made by the donor before they lacked capacity; and
4. The connection of the person receiving the gift to the donor.

The Mental Capacity Act also permits the Attorney to make a gift to him or herself if it is reasonable using the guidance above.

An Attorney is also subject to the following duties:

1. To apply an appropriate standard of care and skill when making decisions;
2. To carry out the donor’s instructions;
3. Not to take advantage of their position and to put the donor’s interests first;
4. Not to delegate decisions, unless authorised to do so
5. To act in good faith;
6. To respect the donor’s confidentiality;
7. To comply with any directions given by the Court of Protection; and
8. Not to give up the role without telling the donor and the court.

Attorneys for property and affairs must also keep accounts and keep the donor’s money separate from their own money.

The Lasting Power of Attorney does not provide a legal basis for the Attorney to act until it has been registered. However, any person who acts as an Attorney under an unregistered Lasting Power of Attorney is protected under the Mental Capacity Act so long as:

1. They did not know that the Lasting Power of Attorney had not been registered; and
2. They are not aware of any circumstances that would make them unsuitable to act as Attorney.

Authority granted to an Attorney under a Lasting Power of Attorney can be revoked at any time by the donor if they have capacity to do so.

Authority can also be revoked when:

1. The specific decisions within it are no longer relevant to the donor's circumstances; or
2. The decisions within the Lasting Power of Attorney have all been made; or
3. The Attorney is no longer permitted to act under the Mental Capacity Act; or
4. A trust corporation (where relevant) is winding up or dissolving; or
5. The Attorney themselves lacks capacity to act.

If there are multiple Attorneys and one of them is no longer permitted or able to act, the Lasting Power of Attorney itself can continue with any remaining Attorney(s) in place.

Authority can be partially revoked when:

1. Changes are made by the donor if they have capacity to do so;
2. The Attorney is no longer able to act in regard to property or affairs, but can continue to act in matters of personal welfare (because the Attorney is declared bankrupt, for example).

Under sections 22 and 23 of the Mental Capacity Act the Court of Protection has specific powers to review the appropriateness and validity of a Lasting Power of Attorney at any time (either before or after registration). Where concerns have been raised with the Office of the Public Guardian about an Attorney’s use of the powers granted under a Lasting Power of Attorney, the Public Guardian may investigate. If the concerns appear to have substance, it may make an application to the Court of Protection to revoke the Lasting Power of Attorney.

Subject to review, and it being in the person's Best Interests the Court can revoke, or decline to register a Lasting Power of Attorney when it finds:

1. The Attorney has behaved, or is behaving in a way that contravenes the authority given to them; or
2. The Attorney has behaved, or is behaving in a way that is not in the person's Best Interests; or
3. The Attorney proposes to behave in a way that contravenes the authority given to them or would not be in the person's Best Interests.

The Court can also revoke, or decline to register a Lasting Power of Attorney if it finds that:

1. Undue pressure was placed on the person to create or register the Lasting Power of Attorney; or
2. Fraud was used to induce the person to create or register the Lasting Power of Attorney.

If there is more than one Attorney under a Lasting Power of Attorney, the Court can decide to revoke the authority of as many Attorneys as it thinks necessary.

If the Court determines that it is in the Best Interests of the person, it may:

1. Amend the nature or scope of any decision that the Attorney has been authorised to make;
2. Give additional authority to the Attorney to make decisions outside of those in the Lasting Power of Attorney;
3. Permit the Attorney to make gifts that go beyond the scope set out in s. 12 of the Mental Capacity Act, see Use of the donor’s financial resource; and
4. Authorise expenses or remuneration to the Attorney for carrying out their role.

If the Court considers it necessary, it can direct (order) an Attorney to provide reports, accounts and other information regarding their role.

Under schedule 1 of the Mental Capacity Act, the Public Guardian (whose office is responsible for maintaining a register of Lasting Powers of Attorney) must cancel a registration upon direction from the Court.