The Act replaced the Enduring Power of Attorney (EPA) with a new form of power of attorney, a Lasting Power of Attorney (LPA). An LPA allows the individual (the donor) to give authority to someone else (the attorney) to make decisions on the donor’s behalf. The donor decides who the attorney should be and how wide ranging the power should be. More than one attorney can be appointed and they may be appointed to make some decisions jointly (ie together) and some decisions jointly and severally (ie independently). If the LPA does not specify this then the attorneys must act jointly.
There are two types of LPA, the property and affairs LPA and the health and welfare LPA. The health and welfare LPA covers personal, welfare and health care decisions, including decisions relating to medical treatment. Although an LPA in relation to property and affairs can be used by the attorney even when the donor still has capacity, an LPA dealing with health and welfare can only operate if the individual lacks capacity in relation to the issue in question.
Requirements of an LPA
The Act allows an individual aged 18 or over who has capacity to appoint an attorney under a health and welfare LPA, to make decisions on their behalf once they lose capacity. In order for it to be valid a specific form must be used for an LPA. This must be in writing and include:
- information about the nature and extent of the LPA
- a statement signed by the donor stating that they have read and understood the information and that they want the health and welfare LPA to apply when they lose capacity
- the names of anyone (other than the attorney(s)) who should be told about an application to register the LPA
- a statement signed by the attorney(s) stating that they have read the information and understand the duties, in particular the duty to act in the donor’s best interests
- a certificate completed by a third party, confirming that, in their opinion, the donor understands the nature and purpose of the LPA and that no fraud or pressure has been used to create the LPA. Registered health care professionals can be certificate providers and, GPs in particular, may find they are asked by patients to fulfil this role.
Registration of an LPA
An LPA must be registered with Office of the Public Guardian (OPG) before it can be used. It does not give the attorney any legal power to make decisions before it is registered. OPG maintains a register of LPAs and, where there is doubt as to the existence of an LPA, anyone can apply to search the register.
Powers of an LPA
The powers granted to an attorney will depend entirely on the wording of the LPA. If a health and welfare LPA has been registered, the attorney will have no authority to make decisions about the donor’s finances or property. On the other hand, if a property and affairs LPA has been registered, the attorney will have no power to make any decisions about the medical treatment of the donor. The donor may also have included specific restrictions on the attorney’s powers. It is therefore important that health care professionals carefully check the wording of the LPA.
Even where a health and welfare LPA has been created and no restrictions have been imposed by the donor, an attorney cannot:
- make treatment decisions if the donor has capacity
- consent to a specific treatment if the donor has made a valid and applicable advance decision to refuse that treatment after the creation of the LPA
- consent to or refuse life-sustaining treatment unless this is expressly authorised by the LPA
- consent to or refuse treatment for a mental disorder where a patient is detained under mental health legislation
- demand specific treatment that health professionals consider is not necessary or appropriate for the donor’s particular condition.
Where an attorney is acting under a health and welfare LPA and they are making decisions in relation to medical treatment, they must act in the donor’s best interests. If there is any doubt about this and it cannot be resolved locally an application can be made to the Court of Protection (see also card 12).
LPA versus EPA
The fundamental difference is that EPAs cover decisions relating to property and financial affairs only, whereas there are two types of LPA, one to deal with financial affairs and one to deal with personal welfare and medical treatment decisions. Although no new EPAs can be made, any that were made before 1 October 2007 and are registered remain legally effective. LPAs will eventually replace the existing system of EPA, but this will inevitably take some years during which time the two systems will coexist.
Card 11 (PDF)