The Mental Capacity Act 2005

Part III - Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is an appointed person who can make decisions on someone’s behalf. The individual who appoints the LPA is known as the ‘donor’ and the LPA as their ‘attorney’


There are two types of LPA:

  1. A property and financial affairs attorney 

  2. A health and welfare attorney


Only a health and welfare attorney can make decisions regarding life enduring treatment. This replaced an Enduring Power of Attorney (EPA) on the 1st October 2007 but EPAs appointed before this date are still valid. 


In regards to LPAs the MCA states:

 

“A lasting power of attorney is a power of attorney under which the donor (“P”) confers on the donee (or donees) authority to make decisions about all or any of the following—

(a)P's personal welfare or specified matters concerning P's personal welfare, and

(b) P's property and affairs or specified matters concerning P's property and affairs,

and which includes authority to make such decisions in circumstances where P no longer has capacity.”

 

It goes onto clarify restrictions in an LPAs powers:

 

“A lasting power of attorney does not authorise the donee (or, if more than one, any of them) to do an act that is intended to restrain P, unless three conditions are satisfied. 

 

  • The first condition is that P lacks, or the donee reasonably believes that P lacks, capacity in relation to the matter in question. 

  • The second is that the donee reasonably believes that it is necessary to do the act in order to prevent harm to P. 

  • The third is that the act is a proportionate response to— 

    (a)the likelihood of P's suffering harm, and 

    (b)the seriousness of that harm. 

 

For the purposes of this section, the donee restrains P if he— 

(a)uses, or threatens to use, force to secure the doing of an act which P resists, or 

(b)restricts P's liberty of movement, whether or not P resists,”


The LPA needs to be registered with the Office of the Public Guardian and if you are unsure of whether a patient has an LPA they can be contacted to find out. 


If there is any dispute as to:

  • Whether the LPA is acting in the best interests of the patient or 

  • whether they have been appointed by the donor due to duress


The decision can be disagreed with. If this is the case you will need to escalate this case to the Court of Protection.


The Court of Protection deal with the following issues:


  • deciding whether someone has the mental capacity to make a particular decision for themselves


  • appointing deputies to make ongoing decisions for people who lack mental capacity


  • giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity


  • handling urgent or emergency applications where a decision must be made on behalf of someone else without delay


  • making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration


  • considering applications to make statutory wills or gift


  • making decisions about when someone can be deprived of their liberty under the Mental Capacity Act


Find out more below:

This video sets out information for setting up a lasting power of attorney UK - The video tells you how to set up a power of attorney UK, why you need one an...

Notice: This video is an introduction and is not intended to be comprehensive legal advice. It sets out the basic points and the main principles of the subje...

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The Mental Capacity Act 2005 Part II - Best Interests
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The Mental Capacity Act 2005 Part IV Independent Mental Capacity Advocate