Saturday, 29 October 2016
Lasting Powers of Attorney
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.
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).
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.
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.
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.
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.
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!
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.
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.’