What do Care Providers Need to Know About LPAs?
In many ways, you’ll
be relieved to know, the answer’s pretty easy. You need to know what Lasting
Powers of Attorney (LPAs) are designed to do; what powers are given (and of
course what powers are not given); you need to know when an LPA can be used;
and you need to know how it can be used. And of course you need to know how to
find out all these things.
What is an LPA?
Sometimes, one
person decides to give another person authority to make a decision on their
behalf. The way to do this legally is by a ‘power of attorney.’
Some of you may
remember the old Enduring Powers of Attorney (EPAs), which only gave powers to
make decisions about property and financial affairs: the point of the name is
that the powers ‘endured’ (continued) even if the person had lost mental
capacity to make their own decisions about their money and assets. Now we have
Lasting Powers of Attorney (LPAs).
What changed?
The big change is
that the Mental Capacity Act (MCA) replaced EPAs by LPAs, and increased the
range of decisions that people can authorise chosen others to make on their
behalf. As well as property and affairs (including financial matters), LPAs can
also now cover health and welfare decisions for people who lack capacity to
make such decisions for themselves. These are two separate forms, giving the
two different sets of powers, so anyone can decide whether to do one of them,
or both, or indeed neither – it’s not compulsory.
The point of LPAs is
to make sure that, if someone loses mental capacity, decisions are made for
them by someone they know and trust. So, this is real ‘planning ahead’, which
any of us can do, in case at some time in the future we can’t make our own
decisions about how our money is managed, or how we are cared for.
How does someone create an LPA?
You might be
interested to know how to do this for yourself, since any of us might lose
capacity for some decisions at some time in the future, so I’ve written it this
way, but remember that nobody can make an LPA for someone else!
You must understand
what you’re doing (have mental capacity to do this, in other words) and be aged
at least 18.
Then, since there
are the two types, one for property and finance, the other for health and
welfare, decide if you want to create just one type, or both.
There are special
forms for each type of LPA, available on the website of the Office of the
Public Guardian (OPG). You can complete them online, download them and fill
them in, or the OPG will send out paper forms.
They need to be
registered with the OPG, before they can be used. Remember that though someone
can use the Property and Affairs LPA while the donor has capacity but gives
permission to the attorney to make those decisions, you can’t do that with the
health and welfare one: if you can make your own decisions about care or
health decisions, you must – it’s your responsibility.
What does a provider need to know?
If you provide
services to people aged 18 or above, and there is a chance that some of them
might now or in the future lose mental capacity, you need to know if there’s an
LPA, and if so, which type (or are there both types). You also need to know
what powers are given, and whether any LPA has been registered, since it can’t
be used until it is.
Why do I need to know this?
As you know, if
someone lacks mental capacity to make a decision when it has to be made, such
as whether or not to agree to particular kinds of care, or have a certain
medical treatment, then someone else will have to make that decision.
We usually say that
the ‘decision-maker’ – the person who will make the best interests decision for
someone who lacks capacity to make it for themselves – is the person who will
carry out the action, whether it’s delivering the personal care, giving the flu
jab, or carrying out surgery. However, if the person has chosen someone
to have decision-making powers, then it’s their attorney (or attorneys) who
have that power, make a best interests decision to consent to or refuse that
care or treatment.
Complications
The person who makes
the LPA can add other things if they want: there’s an example in the MCA code
of practice of a lady who knew her daughter disapproved of some of her friends,
so put in the LPA that her daughter would not have the power to tell the care
provider to bar those friends from visiting! See why you need to be
clear!
Life-sustaining treatment
Something else you
need to know: the attorney(s) may have been given the power to consent to or
refuse life-sustaining treatment – or that power may have been withheld. Some
people want their attorney(s) to make the everyday sorts of decisions about
their health or welfare, but want the doctors treating them to decide at the
time whether life-sustaining treatment is right for them if the situation
arises. It’s all laid out clearly in the form, but you need to know really
clearly what powers have been given or withheld.
How to find out more
When someone starts
to use your service, this is something you need to find out about! You’ll
know if an LPA is registered if it says ‘Registered’ on every page.
You’ll need to read it to know what powers it gives or withholds.
For further
information, see:
MCA Directory – where the MCA code of practice is
in ‘key government documents’ (chapter 7 is all about LPAs), and the OPG is in
‘legal bodies under the MCA.’
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