Key points for practitioners
- Do not take the person’s word that they have an LPA in place. The practitioner should be sure they have the evidence. If they are unsure, they should always check.
- A quick way to check with the OPG is for the attorney to provide the practitioner with a code, that enables them to carry out an immediate online check. If the code is not available, the practitioner can complete an OPG 100.
- If an LPA / deputyship is in place, the practitioner should check that the LPA / deputy has the legal authority to make the decision in question.
- If an LPA / Deputyship is not in place, the practitioner must still involve the relevant people in any decisions they are making.
- If the practitioner believes the LPA / deputy is not acting in the person’s best interests, they may need to make a referral to their safeguarding adult’s team and the OPG, who can displace them.
CONTENTS
- 1. Working with Adults who cannot make Decisions themselves
- 2. Can Someone be Appointed to Act as LPA for an Adult who Lacks Mental Capacity?
- 3. How to Check if there is a Valid LPA in Place
- 4. Other Types of Legal Authority that can support Adults when making certain Decisions
- 5. Whose Decision is it?
- 6. What if the LPA or Deputy refuses to make the Decision?
- 7. What if there are Concerns about the Attorney / Deputy?
- 8. Ending an LPA / Deputyship
- 9. Further Reading
1. Working with Adults who cannot make Decisions themselves
When practitioners are supporting an adult who lacks the mental capacity to make decisions regarding their health and welfare or property and finance, it is important to find out if there is a ‘Lasting Power of Attorney’ (LPA) or ‘deputyship’ in place.
An LPA is a legal document that enables a donor (a person who wants the LPA in place) to select an attorney (the person the donor has selected) to act on their behalf in relation to two types of decisions:
- health and welfare; and
- property and finance.
A donor can have multiple attorneys and replacement attorneys (these are attorneys who will step into the role of attorney if for some reason the current named attorney(s) can no longer act). When there are multiple attorneys, the donor also needs to choose if they will act ‘jointly’ (which means all attorneys need to make a collaborative decision together), or ‘jointly and severally’ (which means attorneys can make decisions together or separately) for specific decisions.
For health and welfare matters, the donor must lack the mental capacity to make the decision in question before the attorney/s can take over this role (this can be different for property and finance which is discussed more below). The reason someone may lack mental capacity is usually either due to a lifelong disability that impacts their cognition such as a severe learning disability or a progressive condition such as dementia. However, it is important to remember that just because someone has an impairment of, or a disturbance in the functioning of, the mind or brain it does not automatically mean that they are unable to make a decision. A mental capacity assessment will need to be carried out to evidence why the person cannot make the decision in question. The mental capacity assessment will look at the person’s diagnosis, how they present, and how this is impacting them (causative nexus).
As noted, there are two options for LPAs: either property and finance or health and welfare. The donor can apply for both or only one if they wish.
1.1 Property and finance
Property and finance covers matters such as selling a property, paying bills, withdrawing money, paying care fees, accessing bank, and saving accounts and investments, pensions, and benefits.
When a person has mental capacity, they can legally appoint someone as their attorney with LPA for property and finance. A difference between property and finance and health and welfare LPAs, is that the donor can select on the form that they are happy for the attorney to act on their behalf even whilst they have the mental capacity. They can also set up the LPA so that the person can only act on their behalf if they lack mental capacity. The donor also has the option to set instructions on what the attorney can and cannot do. This means it is important practitioners check the specific details in the LPA document whenever they are working with someone who has an LPA in place.
1.2 Health and welfare
Health and welfare covers medical care, daily routine and where the donor lives.
Health and welfare LPAs only become valid when the person who made the LPA lacks mental capacity to make the specific decision for themselves. When completing the application, the donor has the option of selecting if they also want the appointed LPA to make decisions around life-sustaining treatment. It is important to remember that life-sustaining treatment can also cover things such as antibiotics due to having pneumonia or being put on a ventilator.
2. Can Someone be Appointed to Act as LPA for an Adult who Lacks Mental Capacity?
No, at the time of applying for LPA the donor must have mental capacity. If an adult lacks the mental capacity for this decision, the person wanting to act on their behalf would need to apply for a deputyship. Deputyship is put in place by the Court of Protection; the person wanting to be the deputy has to make the application to the court.
The application to the court will include a mental capacity assessment to evidence that the person lacks the mental capacity to make decisions as to how to manage their property and finances or health and welfare. The court will decide if the applicant can act on the person’s behalf. There are a few differences between deputyship and LPA, for example, with health and welfare; the life-sustaining treatment option is not applied to deputies. This is due to this being such a significant decision the courts believe that this should be made following consultation with all involved.
3. How to Check if there is a Valid LPA in Place
The Office of the Public Guardian (OPG) holds the records of all registered and valid LPAs (this includes enduring power of attorney and deputyship).
If someone is claiming to have LPA for property and finance and / or health and welfare, the practitioner must ask the attorney to provide the original document which has the OPG reference number.
If someone says they have LPA for property and finance and / or health and welfare, the practitioner must ask the attorney to provide the original document which has the OPG reference number. The information is in page 1 in Section 1: The donor; the LPA registration date and OPG reference number are at the bottom marked for ‘OPG office use only’.
If the paperwork is not available, the OPG can carry out a check to see if there is a valid LPA). This can take some time, therefore if an urgent response is required (for example as part of a safeguarding enquiry), this can be requested online using a template (OPG 100). The OPG normally responds within 48 hours to urgent requests.
Alternatively, the donor or attorney named on the LPA can provide an LPA access code. Practitioners can use the code online to check:
- view a summary of a lasting power of attorney (LPA);
- check whether an LPA is valid;
- check who the attorneys are on an LPA.
See also View a Lasting Power of Attorney (gov.uk)
4. Other Types of Legal Authority that can support Adults when making certain Decisions
4.1 Enduring power of attorney
This was in place before LPA was introduced in 2007. It only covered finance and property. Enduring power of attorney could only be registered when a person lacks mental capacity. This is no longer appointed and there are not many remaining in place.
4.2 Advance decision
This can only be used to refuse medical treatment. To be valid the person must be 18 or over, have the mental capacity to have made an advance decision, which is witnessed, and signed (legally binding). Practitioners may come across advance decisions for finances and property; these should not be ignored but instead would need to be considered under ‘wishes and feelings’ (which is a formal term used as part of best interests’ decisions).
4.3 Best placed professional
If none of the above are in place, the most relevant professional becomes the decision maker for the specific decision in question.
4.4 Court of Protection
At times the decision may be made by the court of protection. This includes when a decision is in dispute, or it is an ‘excluded decision’, which a practitioner has no legal authority over, such as if the person lacking mental capacity wants to get married.
4.5 Not a decision-maker but important
Advance statement
This contains the person’s wishes and feelings for example how they want to be cared for, where they want to live etc. It is not legally binding, but the person’s views need to be considered and the decision will be heavily weighted by this.
Next of kin
The person’s next of kin has no legal decision-making authority to make decisions about the person. They would need to have LPA or a deputyship in place. However, practitioners still need to take into consideration their wishes and feelings.
5. Whose Decision is it?
If a person has been assessed as lacking mental capacity, then any action taken, or any decision made for, or on behalf of them, must be made in their best interests.
When it comes to making best interests decisions, it is important to be clear about who can legally make the decision. If the person is self-funding their care, then potentially the LPA / deputy is the decision maker depending on what legal authority they have been given.
Case example for an adult who self-funds their care and support
Mary has dementia and has been cared for at home with a package of care funded by the family. However, there have been several incidents that have led to Mary assaulting her husband which is now at a point where her needs can no longer be met at home. The husband holds an LPA for Property and Financial Affairs and Health and Welfare. The husband has requested a Care Act assessment and following a financial assessment, Mary has been assessed as self-funding her care. The husband has spoken to the social worker who has advised that a care home would be most suitable for Mary. The husband spoke to the GP and the district nurse about this decision as he wanted to seek their views. The social worker advised the husband that it was his decision to choose the care home and provided some information on care homes that were potentially suitable to meet his wife’s needs. As Mary was self-funding her care and LPA was in place, the decision maker was her husband. Her husband informed the social worker that his wife loved living in the countryside, and it would be important to her that the care home be somewhere quiet, with not too many residents, and had lots of space for his wife to wander the grounds.
The Mental Capacity Act (MCA) is underpinned by five key principles. In line with these, the LPA or deputy must consult with others who are relevant to the decision and must act in the person’s best interests. In the example above, Mary’s husband has consulted with relevant professionals and has followed Mary’s views and wishes when it comes to finding a suitable placement for her.
However, if, in the example above the local authority was funding the care and support, then they would provide the LPA with available options, which would be more than one to choose from. In this case, the local authority will have more involvement due to them funding the placement, however, the LPA will still be heavily involved in this decision-making process, and they would need to choose the placement based on the options provided by the local authority. See Find Someone’s Attorney, Deputy or Guardian (OPG)
Case example for an adult who needs medical treatment
Tom has a severe learning disability and has been admitted to hospital due to having eating and drinking difficulties. After further investigations, the consultant has recommended that Tom requires a PEG (percutaneous endoscopic gastrostomy). Tom’s parents try to refuse this treatment stating they have LPA ‘for everything’ and that they want Tom to be able to eat ‘normally’ and not via a tube, however, upon the social worker consultant submitting an urgent request with the OPG, the OPG confirm that Tom’s parents have LPA for property and finance only. Therefore, the decision maker will be the consultant.
However, in cases such as this just because family are not the decision maker, does not mean they do not have a voice. With any decision, the family’s views are important and hold weight towards the decision. If a unanimous decision cannot be reached, a court application may be required to make the decision.
Case example for an adult who is Continuing Health Care funded
Helen is fully health-funded and is currently in a nursing home that is closing down. The Continuing Health Care (CHC) nurse has checked their system which states there is no LPA / deputy in place. However, there is also no evidence of how this was checked. The CHC nurse ensures that they complete a check with the OPG who confirms there is no LPA / deputy in place. The nurse saves this email confirmation to the person’s record. The CHC nurse is the decision maker regarding the move to a new placement, they ensure they speak to all involved in the person’s care to gain their views including family. All interested parties agree one of the placements is in Helen’s best interests to move to.
With CHC cases it is important to make sure they are funding 100% of the care, if a split funding agreement is in place, then the local authority is the decision maker.
6. What if the LPA or Deputy refuses to make the Decision?
There may be times when the attorney feels that they cannot make a decision. In this situation, practitioners involved must support the attorney to try and make the decision and provide them with all the relevant information. If they still cannot reach a decision, then the decision maker will be the most relevant practitioner, Usually, the reason why this decision becomes too difficult for the attorney to make is around life-sustaining treatment, the attorney may be able to express their views on the decision but do not want the responsibility of turning off life support for example or withdrawing treatment. In these cases, the decision maker would then be the medical team and a court application may be required.
7. What if there are Concerns about the Attorney / Deputy?
At times practitioners may have concerns with the LPA or deputy that is in place. This can include things such as the appointed person not acting in the person’s best interests, suspected financial abuse by the appointed person, the appointed person selling the individual’s property when this is not in their best interests, etc. If a practitioner has any concerns about an LPA or deputyship that is in place, they must first work with the attorney to come to a resolution. The practitioner may also need to contact their local safeguarding adults’ team if they are concerned the attorney is financially abusing or has harmed the donor. The practitioner will also need to contact the OPG as they have the power to investigate and can displace the attorney’s role. If the case is still not resolved, the practitioner may need to go to the Court of Protection.
8. Ending an LPA / Deputyship
The donor can end the LPA at any point as long as they have the mental capacity to make such a decision. The attorneys themselves can also remove themselves from the role as well as the OPG or a court order. The attorney will be asked to return any legal documents to the OPG.
The attorney’s role can also be ended if the donor passes away, the attorney passes away or loses mental capacity and a replacement attorney was not named, or the donor did not state that they must act jointly if the donor’s marriage to the attorney ends and if the attorney of property and finance becomes bankrupt.
With some LPAs there may be a named replacement attorney who would be able to pick up this role if the current Attorney is unable to act anymore.
9. Further Reading
9.1 Relevant chapter
9.2 Relevant information
Find out if Someone has a Registered Attorney or Deputy (OPG)
Urgent Enquiries: Check if Someone has an Attorney or Deputy (OPG)
View Lasting Power of Attorney (gov.uk)
Use a Lasting Power of Attorney Service (OPG)
Using a Lasting Power of Attorney (gov.uk)
LPAs – the Duties on the Certificate Provider (Mental Capacity Law and Policy)
