Client's Guide to Acting as Attorney of a Welfare Lasting Power of Attorney (LPA)

You have agreed to be an attorney of a welfare LPA. What is your role?

When do I need to act?

You can only act if:

  • The LPA has been registered with the Office of the Public Guardian.
  • You reasonably believe that the donor has lost the mental capacity to make the decision in question at the time it needs to be made.
  • In relation to life sustaining treatment and where there is no valid advance medical decision (living will) in place, the LPA specifically allows you to make this decision. N.B. There is no power to demand specific forms of treatment.
  • Please note - if the donor has been detained under Part 4 of the Mental Health Act 1983, no decision can be made regarding treatment for their mental disorder.
Whet actions can I take as an attorney?

Unless the LPA restricts you, you will be able to make all decisions about the donor's personal welfare and health care. This could include the following decisions-

  • Where the donor should live and who they should live with.
  • The donor's day-to-day care, including diet and dress.
  • Whom the donor may have contact with.
  • Consenting to or refusing medical examination and treatment on the donor's behalf.
  • Making arrangements for the donor to be given medical, dental or optical treatment
  • Arranging assessments for and provision of community care services.
  • Whether the donor should take part in social activities, leisure activities, education or training.
  • The donor's personal correspondence and papers.
  • Rights of access to personal information about the donor.
  • Complaints about the donor’s care or treatment
When acting in my role as an attorney, what do I need to consider?

In this role you have important duties and responsibilities which are set out in the Mental Capacity Act 2005 and explained in the Code. of Practice, with which you should be familiar. This can be accessed from the website of the Ministry of Justice.

The following are particularly important:

You must follow the principles set out in section 1 of the Act:

Principle 1

It should be assumed that everyone has capacity to make his or her own decision, unless it is proved otherwise.

Principle 2

A person should have all the help and support possible to make and communicate their own decision before anyone concludes that they lack capacity to make their own decision.

Principle 3

A person should not be treated as lacking capacity just because they make an unwise decision.

Principle 4

Actions or decisions carried out on behalf of someone who lacks capacity must be in that person's best interests.

Principle 5

Actions or decisions carried out on behalf of someone who lacks capacity should limit that person’s rights and freedom of action as little as possible.

You must always act in the donor's best interests
  • There is guidance in chapter 5 of the Code of Practice to help you, but in general terms, you need to:
  • Consider the donor's past and present wishes and feelings, beliefs and values.
  • Where practical and appropriate consult with:
    • Anyone caring for the donor.
    • Close relatives and anyone else with an interest in their welfare.
    • Other attorneys appointed by the donor.
       
  • Always check whether the donor has the capacity to make a particular decision himself. You can only act if the donor does not, on a balance of probabilities, have capacity to make the required decision at the time.
  • Only make those decisions the LPA gives you authority to make i.e.:
    • If you are acting only under a welfare LPA, you cannot make decisions about the donor's property and affairs.
    • If the LPA is restricted in any way, your authority is limited. If you need further powers in the future, you will be able to apply to the Court of Protection.
       
  • Other duties include:
    • Apply certain standards of care and skill (duty of care) when making decisions.
    • Carry out the donor's instructions.
    • Do not take advantage of your position and not benefit yourself, but benefit the donor (fiduciary duty).
    • Do not delegate decisions, unless authorised to do so
    • Act in good faith.
    • Respect confidentiality.
    • Comply with the directions of the Court of Protection
    • Do not give up your role as attorney without telling the donor and the court.
    • In relation to end of life decisions, do not be motivated by the desire to bring about the donor's death, but by a desire to save the donor suffering and to comply with his or her wishes.
How do I decide whether or not the donor has capacity?

You use the test laid down in the Mental Capacity Act 2005, which has two stages -

Stage 1 - Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Examples may include conditions associated with some form of dementia, or the long-term effects of brain damage.

Stage 2 - Does the impairment or disturbance mean that the person is unable to make a specific decision? This stage can only be applied if you have taken all practical steps to support the donor in making the decision and this has failed.

A person is considered to be unable to make a decision if they cannot on a balance of probabilities:

  • Understand information about the decision to be made (the MCA calls this 'relevant information').
  • Retain that information in their mind.
  • Weigh that information as part of the decision making process.
  • Communicate their decision (by talking, by using sign language or by any other means).

The Code of Practice offers practical examples which will be very helpful to you, but essentially you need to give the donor as much opportunity as possible to make his or her own decisions before you decide to act and also, to follow the steps laid down in Chapter 4 of the Code of Practice, suggested steps for establishing that the donor lacks capacity to make a particular decision.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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