A Lasting Power Of Attorney unlike a general power remains effective even if the donor loses his or her mental capacity. There are two types and separate LPAs can be granted by a donor to deal with each of his financial and his personal affairs. Unlike its predecessor, the enduring power of attorney, a lasting power is not effective until registered. When a person has no enduring or lasting power in place, the Court of Protection may appoint a deputy to make decisions on behalf of a person lacking capacity. This is best avoided as applying to be a deputy is expensive and time consuming.
Obligations of the attorney under a Lasting Power
An attorney has a number of legal obligations when acting. These include:
• Not to exceed the scope of his authority under the LPA or in law;
• To apply relevant standards of care and skill (duty of care) when making decisions;
• To carry out any express instructions;
• Not to take advantage of his or her position and not benefit from acting as an attorney;
• Not to delegate decisions, unless authorised to do so;
• To act in good faith;
• To respect confidentiality;
• To comply with the directions of the Court of Protection and Public Guardian;
• Not give up the role without telling the donor and the Public Guardian;
• To keep accounts; and
• To keep your money and property separate from his or her own money.
Lasting Powers of Attorney were created by the Mental Health Act 2005 and came into effect from October 2007. The Act contains a number of principles in section 1 applicable to decisions concerning people who may lack mental capacity.
• It should be assumed that everyone can make their own decisions unless it is proved otherwise.
• A person should have all the help and support possible to make and communicate their own decision before anyone concludes that they lack capacity to make their own decision.
• A person should not be treated as lacking capacity just because he makes an unwise decision.
• Actions or decisions carried out on behalf of someone who lacks capacity must be in that person’s best interests.
• Actions or decisions carried out on behalf of someone who lacks capacity should limit their rights and freedom of action as little as possible.
• An attorney acting under a LPA must always act in the donor’s best interest. This obligation which is built into the Act as a fundamental principle requires the attorney:
• Not to make assumptions based on the donor’s age, appearance or condition;
• To consider whether the donor will regain capacity;
• To encourage the donor to participate in any decision made or act carried out on behalf of the donor;
• To consider the donor’s past and present wishes and feelings, beliefs and values (and in particular any written statement); and
• Where practical and appropriate consult with
• anyone caring for the donor
• close relatives and anyone else with an interest in the welfare of the donor
• any attorney appointed by the donor
• any deputy appointed by the Court of Protection.
Property and Financial Lasting Powers of Attorney
This LPA can be used at any time once it has been registered. However whilst the donor retains his mental capacity the attorney cannot ignore the donor’s instructions and the donor can cancel the LPA at any time.
The attorney appointed under a property and financial LPA can make most decisions relating to the donor’s financial affairs. Clearly welfare decisions fall outside of the power although the financial decisions must be made so as to support the donor’s welfare. Thus although there is no power to consent to medical treatment you may make the funds available for the best possible care.
There are also other matters which are excluded or restricted. You may not for example make a will or settle money on behalf of the donor. The making of gifts on behalf of the donor is also strictly restricted.
Unless there is a contrary intention or specific authority given in the power, gifts can only be made:
• To people who are related to, or connected with the donor (including attorneys) on specific occasions such as births or birthdays, weddings or wedding anniversaries, civil partnership ceremonies or anniversaries, or any other occasions when family, friends or associates usually give presents;
• to charities where there is a history of regular payments, or even from time to time; and the gifts must be reasonable having regard to all the circumstances and in relation to the donor’s assets.
The Court of Protection can on application make other gifts on behalf of the donor. If there is any doubt as to whether a particular gift can or should be made then an application should be made to the Court of Protection
Health and Welfare Lasting Power of Attorney
Once the health and welfare power has been registered the attorney may use the power if he reasonably believes that the donor has lost his mental capacity. However this is subject to there being no later advance directive and will only allow the attorney to make decisions on life sustaining treatment if this is specifically allowed.
The obligation to act in the donor’s best interest is the fundamental requirement and the provisions of section 1 of the Mental Health Act above will apply.
Unless the health and welfare LPA contains restrictions, an attorney will be able to make decisions including
• Where you should live and who you should live with;
• Your day-to-day care, including diet and dress;
• Who you may have contact with;
• Consenting to or refusing medical examination and treatment;
• Making arrangements for medical, dental or optical treatment;
• Assessments for and provision of community care services;
• Whether you should take part in social activities, leisure activities, education or training;
• Your personal correspondence and papers;
• Rights of access to personal information about you, including your medical records, or;
• Complaints about your care or treatment.
There are limitations on what an attorney can do under a welfare power. There is no power to demand specific forms of treatment. The attorney can merely give or refuse authority or consent to someone else – such as a doctor or carer to carry out or withhold a particular treatment or act. Also If the donor is detained under the Mental Health Act 1983, no decision can be made regarding treatment for a mental condition.
Many people appoint family members to be their Attorney(s). You can appoint your spouse or your children or both to act together. Your Attorney must be over 18 and not an un-discharged bankrupt or an interim bankrupt for a property and financial LPA.
An Attorney can be replaced at any time whilst the donor has mental capacity.
Making the Lasting power of Attorney
As a safeguard against abuse the document granting the LPA must be countersigned by an independent person chosen by the donor to confirm that in his or her opinion the donor understands the purpose and contents of the document and the scope of the powers they are giving to the attorneys;= It must also be confirmed that the donor is not under any undue pressure or duress to make the LPA , that he has not been tricked into making it, and that there is nothing else that would prevent the LPA being created.
The person countersigning the LPA is known as the certificate provider and must be:
• A registered healthcare professional such as a GP.
• A registered Social Worker.
• A Barrister, Solicitor or Advocate.
• An Independent Mental Capacity Advocate.
• Any other person who considers they have the relevant professional skills and expertise to be a certificate provider.
The certificate provider must assess the donor’s capacity to understand the importance of the document he is signing and the extent of the powers given by it. If, for any reason, the LPA is challenged at the time when it is being registered, the certificate provider may be called on by the Court to justify their opinion.
Certification can be on either the basis that the certificate provider has known the donor personally and has done so for a minimum period of two years believes or that the provider has the relevant professional skills and expertise to provide the certification.
Where the donor has not listed anyone to be told when the LPA is to be registered it will be necessary to have a second certificate provider.
Registration of LPAs
An application to register a LPA may be made by either the donor or the attorney. Separate applications must be made to register Property and Financial Affairs LPAs and Health and Welfare LPAs. A fee is payable in respect of each registration.
Where an LPA is being registered by more than one attorneys appointed jointly the attorneys must apply for registration together. If the attorneys are appointed jointly and severally, then any one of them may make the application. The attorney must notify the people required to be notified in the LPA.
Once all of the necessary documents have been lodged with the Office of the Public Guardian (OPG) a registration date is set. This will be six weeks from the date that the OPG gives notice to any persons who did not join in the application to register.
Where an important decision has to be made on behalf of the donor but the LPA has not yet been registered, it will be necessary to apply to the Court of Protection for an Order on that decision.
There are two grounds on which a person can object to the registration of the LPA:
• The form is no longer valid; for example, because you or the Attorney is dead or bankrupt, the Attorney lacks capacity, or you and the Attorney were married (or in a civil partnership) that has been dissolved. In these circumstances the objection must be made to the Office of the Public Guardian using a Form LPA 007, within five weeks of them receiving notice of the intended registration of the LPA.
• The form has been obtained improperly in some way; for example, because the formalities were not complied with, you lacked the necessary capacity, or the power had been obtained by fraud or undue pressure.
• A further ground is that the Attorney proposes to act in a manner contrary to your best interests. In these circumstances the objection must be made to the Court of Protection using Form COP7, and notice of the objection must be given to the Office of the Public Guardian on Form LPA 008 within five weeks of them receiving notice of the intended registration of the LPA.
There are separate forms for the two different types of LPA. They are available with explanatory notes to download from the Government’s official website. Form LPA002 must be completed for both types and submitted with the fee. It will be stamped by the OPG and returned to you as evidence that the power is registered.