This guide explains the Lasting Power of Attorney (LPA), including its types, attorney obligations, and decision-making considerations under the Mental Capacity Act 2005, prioritising the donor's best interests.

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A guide to Understanding the Lasting Power Of Attorney

Including an explanation of Lasting Powers of Attorney and how they work, examples of organisations and businesses you may have to contact as an attorney and how to act as a responsible attorney.

A Lasting Power of Attorney (LPA) is a legally binding document which allows the donor (the person making the LPA) to appoint attorneys who can deal with their affairs and make decisions on their behalf relating to property and finances, as well as health and welfare decisions. The LPA is a powerful document as it permits the attorneys to make any decisions that the donor would have made before they lost mental capacity.

Mental capacity is the donor’s ability to make decisions relating to their affairs, they must understand the decision they are making and the potential impacts of their decision.

Please note that attorneys are not permitted to change the donor’s will under the Lasting Power of Attorney.

There are two types of LPAs:

The Property and Finance LPA
a) This can be used as soon as it is registered if the donor chooses this option in the LPA. The attorneys can act on behalf of the donor, with their consent, even if they still have mental capacity.

The Health and Welfare LPA
a) This cannot be used until the donor is deemed unable to make their own decisions. This is because it is important they are able to make decisions about their health and welfare up until the point they are no longer able.

When the time comes to use a Lasting Power of Attorney, it can be difficult for the attorneys to know what is required of them, and the factors which should be considered when acting under an LPA. The overarching requirement is that attorneys must act in the best interests of the person that made the LPA.

What is your role as an attorney?

Attorneys who act under the authority of the Property and Finance Lasting Power of Attorney will have to deal with some of the following:

Paying bills, sorting out direct debits
Generally managing bank accounts or investments
Sorting out benefit payments
Dealing with pension allowances
Selling or purchasing a property

Attorneys acting under the Health and Welfare LPA may have to make decisions relating to some of the following:

The donor’s living arrangements
Day-to-day matters such as routine and diet
Life-sustaining treatment

The donor has the option when creating the LPA to choose whether attorneys are permitted to make decisions relating to life-sustaining treatment. Life-sustaining treatment includes serious operations and artificial nutrition or hydration. It is important to note that life-sustaining treatment is anything which attempts to preserve the life of the donor, which could include anti-biotics depending on the situation.¹ In order to deal with the above, institutions and organisations will require a certified copy of the LPA to allow you to act as an attorney. Please see the Lasting Power of Attorney forms on the Government website

What must an attorney consider when acting on behalf of the donor?

Section 8 of the Lasting Power of Attorney sets out the legal rights and responsibilities of acting as an attorney as governed by the Mental Capacity Act 2005.²

As an attorney, you are required to act with consideration of the following principles of the Mental Capacity Act 2005:

Your attorneys must assume you are able to make your own decisions, unless it is established that you cannot do so.

It is important that a donor is able to act until it is confirmed that they cannot do so.

Your attorneys must help you make as many of your own decisions and take all practical steps to help with decision-making.

These practical steps could include ensuring writing is in a bigger font, or reading information to a donor who is hard of hearing.

Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.

This is an important consideration to take into account. As an attorney you cannot intervene in a decision simply because you think it is unwise or do not agree with it.

Your attorneys must act in your best interests when you are unable to make a decision.

This is the overarching principle for attorneys acting under a LPA to consider.

When acting, your attorneys must consider whether they can act in a way that is less restrictive of rights and freedoms but still achieves the relevant purpose.

For example, where the donor is unable to care for themselves adequately, the attorneys should consider all available options before deciding on moving the donor to a care home. Perhaps they would still be able to live at home if they had a carer visit a couple of times a day.

Acting under a power of attorney can be challenging. Fundamentally, the attorneys must always have the best interests of the donor at the heart of all decisions they make, and they must take all practical steps to assist the donor with decision-making until it is established that they cannot make decisions for themselves.

^{1 – Please see the Lasting Power of Attorney forms on the Government website}
^{2 – Please see section 8 of the Lasting Power of Attorney forms on the Government website}

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