A guide to making a Lasting Power of Attorney (Personal Welfare)

What is a Lasting Power of Attorney (LPA)?

An LPA is an important legal document allowing you (the “donor”) to choose someone (the “attorney”) you trust to make decisions about things such as your healthcare and finances on your behalf in the future, when you may lack the mental capacity to make those decisions yourself.

"An LPA can only be used when it has been correctly completed, signed, witnessed and then registered with the Office of the Public Guardian"

An LPA can only be used when it has been correctly completed, signed, witnessed and then registered with the Office of the Public Guardian (OPG).

You do not need to live in England and Wales to make a personal welfare LPA, but you will need to be in England or Wales at the time your Attorney needs to use it.

Please note: An LPA made in England and Wales will not be legally binding for use in other countries including Scotland, the Republic of Ireland or Northern Ireland. It will be up to institutions (such as hospitals) in other countries to decide whether to recognise the LPA.

How do LPAs safeguard my welfare, property and affairs?

There are two types of LPA:

  1. A Personal Welfare LPA allows your attorney to make decisions on your behalf regarding your personal welfare, including whether to consent or not to medical treatment on your behalf as well as deciding where you live. It does not allow your attorney(s) to make decisions regarding your property and affairs.
  2. A Property and Affairs LPA allows your attorney(s) to make decisions on your behalf regarding your property and affairs, including paying your bills, collecting your benefits or other income, and selling your house, subject to any restrictions and conditions. It does not allow your attorney(s) to make decisions regarding your personal welfare.

Other ways to plan for the future:

  1. Write a statement of your preferences or wishes. This is not legally binding but those involved in your care and treatment must take note of the contents as part of any best interests’ decision.
  2. Create a care plan if you are receiving health and/or social care services. This is a written document that outlines the types and frequency of the long-term care services that a person receives.
  3. Make an advance decision to refuse treatment. When valid and applicable this is a legally binding document that enables you to specify particular types of treatment you do not want, should you lack the capacity to decide this for yourself in the future.
  4. Make an advance decision to refuse treatment. When valid and applicable, this is a legally binding document that enables you to specify particular types of treatment you do not want, should you lack the capacity to decide this for yourself in the future.
    1. An advance decision to refuse treatment may become invalid if you later make a Personal Welfare LPA which confers authority on your attorney(s) to give or refuse consent to treatment to which the advance decision relates.
    2. If you have made an advance decision to refuse treatment, you should seek advice when deciding what powers to give your attorney(s) when you make your LPA.

What is a Personal Welfare Attorney?

This attorney is the person you choose and appoint to make decisions on your behalf about your personal welfare. It is an important role and one your chosen representative must agree to take on. You need to choose someone you know well, can trust to make decisions in your best interests and who is happy to take on the role.

"You can choose a family member, friend or anyone willing to act for you, providing they are aged over 18"

You can choose a family member, friend or anyone willing to act for you, providing they are aged over 18. An attorney must always be a named individual.

If you choose your spouse or civil partner and yet your marriage or civil partnership is dissolved or annulled in the future, the LPA will cease, unless you have stated within the LPA that your spouse or civil partner can continue to act as your attorney; or you have appointed a replacement attorney able to replace them; or you have appointed your attorney(s) to act together and independently (see below).

Your attorney(s) does not have to live in England or Wales. However, if they live abroad permanently or for significant periods, they may have problems dealing with some matters, such as taking emergency decisions about your health and welfare.

What sort of powers should I give my attorney/s?

You can appoint as many attorneys as you wish, but it is important to consider how you are appointing them. You will need to specify whether you want to appoint your attorneys to act:

  • together;
  • together and independently;
  • together in some matters and together and independently in others.

In an LPA form, “together” means jointly, and “together and independently” means jointly and severally for the purposes of the Mental Capacity Act 2005.

Attorneys appointed together must always act together. They must all agree before doing anything on your behalf. If one Attorney does not agree with a proposed action, that decision cannot be made. Donors often use this as a safeguard to ensure that all those they trust to make decisions for them are in agreement. However, you must remember that this could:

  • delay decisions that may need to be taken at short notice; or
  • make it difficult for them to act/make decisions; or
  • the LPA could be cancelled if they cannot work together; or
  • the LPA could be cancelled if one of them dies or loses capacity themselves to make decisions as your Attorney.

"Attorneys appointed together must always act together"

Attorneys appointed together must always act together. They must all agree before doing anything on your behalf. If one Attorney does not agree with a proposed action, that decision cannot be made. Donors often use this as a safeguard to ensure that all those they trust to make decisions for them are in agreement. However, you must remember that this could:

  • delay decisions that may need to be taken at short notice; or
  • make it difficult for them to act/make decisions; or
  • the LPA could be cancelled if they cannot work together; or
  • the LPA could be cancelled if one of them dies or loses capacity themselves to make decisions as your attorney.

Attorneys appointed together and independently can both act on their own and together. This means, for example, that any one of them can decide on a particular issue. This can be useful if one of your chosen attorneys is not available all of the time due to, say, working abroad for long periods. Additionally, if one attorney falls ill, dies or lacks the capacity to act, the LPA will still continue and the remaining attorney(s) can continue to act.

You can also appoint your attorneys to act together on some matters and together and independently on others – for example, acting together when deciding where you live but together and independently when deciding whether to consent to medical treatment. You will need to set these matters out clearly in your LPA when you appoint your attorneys.

Remember that if you appoint more than one attorney but do not specify how you are appointing them, they will be appointed together.

What legal checks and balances exist to safeguard my future?

There is no right or wrong way to appoint attorneys to act but the points below are worth considering:

An LPA is a very powerful legal document. When choosing an attorney, you have to be comfortable that they will be making decisions on your behalf. However, the following safeguards are built into an LPA to protect you:

  • The LPA must be registered with the Office of the Public Guardian before use;
  • Someone must be identified to provide a Part B Certificate confirming, among other things, that you understand the purpose of an LPA and the scope of powers you are giving to your attorney(s);
  • Certain people chosen by you called “named persons” have to be notified before an LPA’s registration;

"A Legal Power of Attorney is a very powerful legal document"

  • Signatures of the donor and attorney(s) must be witnessed;
  • You, your attorney(s) and named persons have the right to object to an LPA’s registration;
  • Your attorney(s) must respect the code of practice which provides guidance on the Mental Capacity Act 2005 and makes it clear that they must always act in your best interests.

Optional safeguards include:

  • Restrictions or conditions in the LPA, which your attorney(s) must follow – e.g. that your attorney(s) cannot make decisions about the treatment of a particular illness you may have;
  • Giving guidance in your LPA which your attorney should take into account when making decisions on your behalf.

What can my attorney do for me?

Once the LPA is registered, and it does not contain any restrictions or conditions, your attorney(s) will be able to do anything that you can do now in relation to your personal welfare. This might include:

  • deciding where your permanent place of residence should be;
  • deciding what care and accommodation may be appropriate for you;
  • consenting to any medical treatment or procedure or therapy of whatever nature for your benefit and providing access for that, or refusing such consent;
  • deciding, alone or with others, on the level of care you may need;
  • making decisions about your dress, diet and personal appearance as appropriate;
  • choosing your social and cultural activities;
  • arranging for you to undertake work, education or training;
  • taking you on holiday or authorising someone else to do so;
  • consenting to you being involved in certain types of research that meets the strict rules set out by the Mental Capacity Act (2005).

Can I insert my own checks and balances?

You may wish to include a condition that your attorney must act in a certain way or include restrictions preventing your attorney(s) from specifically making some of the decisions listed above.

"You can include restrictions or conditions in your LPA, allowing you to decide which decisions you want your attorney(s) to make"

When making your LPA, you must be satisfied that you have given your chosen attorney(s) the right powers to enable them to make the decisions you would like made about your personal welfare in the future, should you lack the capacity to make them yourself.

You can include restrictions or conditions in your LPA, allowing you to decide which decisions you want your attorney(s) to make or that they must act in a particular way, such as getting them to always talk to a particular person before deciding about where you live, or allowing them to decide about your social care but not about your healthcare or vice-versa.

How can I make my wording watertight?

Think carefully about how you word any LPA restrictions or conditions. They should be straightforward and easy to put into practice so that health and social care staff and other professionals can follow them effectively in the future. If they are too complex or impractical, the Office of the Public Guardian may need to refer your LPA to the Court of Protection, leading to possible cancellation of that restriction or condition.

Remember that restrictions and conditions are there for your attorney(s) to follow when making decisions on your behalf. They should not act as statements of your intentions for others to follow.

"You may wish to discuss restrictions and conditions you want to include in your LPA with ourselves or a health or social care professional"

You may wish to discuss the types of restrictions and conditions you want to include in your LPA with ourselves or a health or social care professional.

How can I prevent the danger of misinterpretation?

When making decisions on your behalf, your attorney(s) must follow any restrictions or conditions you have included in your LPA. You may also include broader guidance on your views on particular matters. This will not be binding on your attorney(s) but may help them when making decisions in your best interests.

‘Life-sustaining treatment’?

"If you want your attorney(s) to have the power to decide about “life-sustaining treatment”, you have to expressly give them the power"

If you want your attorney(s) to have the power to make decisions about “life-sustaining treatment”, you have to expressly give them the power to decide by completing sections 6 and 12 of the LPA form. This may mean making decisions about whether or not to withdraw treatments in situations where that treatment has become burdensome or is not effective.

If you do not give your attorney(s) the ability to make decisions about life-sustaining treatment, these decisions will be made by a health professional (subject to any valid and applicable advance decision).

If you give your attorney(s) the power to make personal welfare decisions without any restrictions or conditions, they will be able to consent on your behalf to you taking part in particular types of research projects.

"There are strict rules to protect people lacking the capacity to consent to take part in research"

Research is an important way of understanding illness and disability, and of improving the care and support people receive. This could include testing how effective a certain type of care or treatment is in supporting those who may lack capacity, or finding out what caused a condition such as Alzheimer’s disease. At times, this research will only be useful if it involves people who lack the mental capacity to agree to take part, such as investigating what causes conditions such as dementia. There are strict rules to protect people lacking the capacity to consent to take part in research; the rules also ensure their current or previous wishes are taken into account.

What happens if my attorney is unable to make decisions for me?

You can appoint people to act in place of an attorney who is no longer able to or does not wish to make decisions as your attorney.

  • You can choose as many replacements as you want.
  • You may decide to appoint a replacement, although an LPA does not require you to do so.
  • Replacement attorneys can act instead of any original attorneys but you must set out how they be appointed and how they are to act, e.g. “solely” or “together”.
  • At the time you make your LPA, you must also appoint your replacement attorney who must sign up to take on the role like any other attorney.
  • A replacement attorney will play no part in making decisions for you unless they have to replace your original attorney(s).
  • Your replacement attorney(s) can replace any of your chosen attorneys

"If you have more than one attorney, you can specify who you do and do not wish your replacement to replace"

If you have more than one attorney, you can specify who you do and do not wish your replacement to replace. You can include a condition specifying who is to be replaced, such as:

  • any attorney or a specific attorney (of your choice) unwilling or unable to carry out their duties;
  • any attorney unwilling or unable to carry out their duties except a specified attorney (of your choice)

You can only appoint a replacement for your original attorneys, not additional replacements for the replacement attorneys

It is important that you or your attorneys inform the Office of the Public Guardian (OPG) that an attorney has been replaced. The document will need to be sent to the OPG which will attach a note to it stating that the replacement has happened and update the LPA register.

Can my attorney claim out-of-pocket expenses or charge for services?

Your attorney(s) may claim expenses for things such as telephone calls, postage charges and transport costs incurred while undertaking their duties. The expenses must be in direct proportion to the size of your estate and their duties. However, you decide if your attorney(s) receives payments/fees specifically for acting on your behalf.

If you decide your attorney may charge or you appoint a professional, such as a solicitor or an accountant, it would be wise to note the agreed fees in section A, part 8 of the LPA form.

Can my attorney(s) give up their role?

Yes. If your LPA is unregistered, your attorney must give you formal notice to do this. If your LPA is registered, the attorney must give formal notice to the Office of the Public Guardian (OPG) and they should also notify you. They can do this by using form LP5 (disclaimer by attorney or proposed attorney) available from the OPG or its website.

You cannot authorise your existing attorney(s) to appoint a replacement attorney if they wish to leave. If you want a replacement, you have to appoint them yourself when you create an LPA.

What happens if my attorney does not act in my best interests?

The Public Guardian is responsible for maintaining the register of LPAs. If the OPG receives evidence that an attorney is not acting correctly, the Public Guardian will consider if action is needed.

The Court of Protection may also become involved and ask the attorney to account for all their dealings; it may cancel the LPA if there is sufficient evidence of incorrect behaviour.

"The attorney in question may be ordered to compensate you for any losses"

The attorney in question may be ordered to compensate you for any losses. Anyone ill-treating or wilfully neglecting someone they have care of who lacks capacity, or to whom an LPA appointment relates, can be found guilty of a criminal offence, punishable by a fine and/or a prison sentence up to five years.

How do I choose Named Persons?

A named person is someone you have specified in your LPA who you want to be notified when an application is made to register your LPA. Selecting a ‘named person’ is one of the key safeguards of an LPA.

Once notified, if your named person is concerned about your LPA’s registration – e.g. they feel you were put under pressure to make it – they can object to the LPA being registered.

"It is very important that you keep the addresses/contact details of your named persons up to date"

You are advised to name up to five people who know you well enough to be able to raise any concerns about an application to register your LPA. Naming this many people could be particularly useful if, in the future, one or more of them cannot be contacted.

It is very important that you keep the addresses/contact details of your named persons up to date. You should do this on a separate sheet and keep this with your completed LPA. You must not make any amendments to a completed and signed LPA.

If you decide not to name anyone or if you do not have anyone suitable, you must have two separate certificate providers.

What is a Certificate Provider?

Choosing your certificate provider is a vital safeguard of an LPA

This is the person you must select to complete a Part B Certificate of the LPA form confirming that you understand the LPA and that you are not under any pressure to make it. Choosing your certificate provider is a vital safeguard of an LPA. S/he must complete the Part B Certificate as soon as possible after you fill in and sign your parts of the LPA. The certificate is a vital part of the LPA document and must not be detached from it; the LPA is not valid and cannot be registered without it.

You can choose two types of certificate provider:

Category A - Knowledge certification – a knowledge-based provider is someone that you have known personally for at least two years.

Category B - Skills certification – a skills-based provider is someone who considers that they have the relevant professional skills and expertise to certify your LPA.

The following are suitable skills-based certificate providers listed on the LPA form:

  • a registered healthcare professional (including a GP);
  • a solicitor, barrister or advocate;
  • a registered social worker;
  • an independent mental capacity advocate (IMCA).

"Skills-based certificate providers may charge a fee for providing the certificate"

You may also pick someone not listed on the form. However, they too must consider they have the relevant professional skills and expertise to provide a certificate and be able to describe them on the certificate. Skills-based certificate providers may charge a fee for providing the certificate.

You cannot select anyone from the following list to be a certificate provider:

  • a business partner or paid employee of yours or your attorney(s);
  • an attorney appointed in this form or another LPA or any EPA (Enduring Powers of Attorney) made by you - (EPAs have been replaced by LPAs in England and Wales, though they can still be used if made and signed before October 2007);
  • the owner, director, manager or an employee (or any member of their family) of a care home where you currently live

If your certificate provider has any concerns about your understanding of the LPA or feels you have been influenced or pressured into making it, they can inform us about their concerns. The Certificate Provider and Witness guidance booklet is available from the OPG (see details below).

How do I register my LPA - and what is the role of the LPA register?

Registration of an LPA does not mean that you lack the capacity to act, which you are assumed to have unless it is shown that you do not. Your attorney is always obliged to help you to make as many of your own decisions as possible. If you do lack capacity, your attorney can act for you in your best interests according to the contents of your LPA.

"If you are unhappy with your attorney’s actions and still have the capacity to do so, you can revoke your LPA"

  • If you are unhappy with your attorney’s actions and still have the capacity to do so, you can revoke your LPA but you should also advise the OPG so the LPA register can be updated.
  • Your LPA can be registered any time after it has been completed and signed by all required signatories. The benefit of prompt registration is that it will be ready for use by your attorney(s) whenever it is needed – but an LPA cannot be used until it has been registered.
  • If an application to register your LPA is made long before it is needed, you may have to occasionally check the registered document to ensure its contents are still relevant to your circumstances.
  • You cannot make any changes to an existing LPA if it has been signed, witnessed and certified. However, if the contact details of your named persons or your attorney(s) change, you should record these on a separate sheet and keep it with your LPA.
  • If you need to change any aspect of your LPA – e.g. any restrictions or conditions, or you want to appoint a new attorney, you will need to consider making a new LPA.

What’s the role of the LPA register?

The LPA register is a searchable database detailing all registered Lasting Powers of Attorney. Once your LPA is registered, it is important to remember that certain information will be available to anyone who applies to search the register (there is a fee to search the register).

One aim of the register is to allow those with an interest, such as healthcare professionals, to see whether an LPA has been registered by the Office of the Public Guardian (OPG) for a particular person.

"The Office of the Public Guardian can be asked to stop registration of an LPA on certain grounds"

Who can object to an LPA being registered and on what grounds?

Only the donor, the named persons, or other attorneys may object to an LPA’s registration.

  1. Objections on factual grounds – the Office of the Public Guardian can be asked to stop registration if:
    • the donor is dead;
    • the attorney is dead;
    • there has been dissolution or annulment of a marriage or civil partnership between the donor and attorney (unless the LPA provided that such an event should not affect the instrument);
    • the attorney(s) lacks the capacity to be an attorney under the LPA;
    • the attorney(s) has disclaimed their appointment.
  2. Objection on prescribed grounds – objections to the Court of Protection against an LPA’s registration can only be made on the following grounds:
    • the power purported to be created by the instrument is not valid as an LPA - e.g. the person objecting does not believe the donor had capacity to make an LPA;
    • the power created by the instrument no longer exists – e.g. the donor revoked it when s/he had capacity to do so;
    • fraud or undue pressure was used to induce the donor to make the power;
    • the attorney proposes to behave in a way that would contravene his/her authority or not be in the donor’s best interests.

The OPG will require appropriate evidence to support any factual objection raised. Objections by the donor do not need to be on any specific grounds. If the OPG or the Court receives an objection to your application to register an LPA, they will contact you to advise what steps you need to take next.

Useful contacts for more information

The Office of the Public Guardian (OPG)is an executive agency in the Ministry of Justice. It is headed by the Public Guardian, who is responsible for registering LPAs and for maintaining the register. The OPG only advises on its own processes; it cannot provide legal advice or services to any party. It deals with any representations (including complaints) about how an attorney appointed under an LPA is exercising their powers, including checking the attorney, which could involve a visit from a Court of Protection representative. If anyone is concerned or has a complaint about an attorney or the handling of an LPA’s registration, they can contact the OPG for advice.
Archway Tower, 2 Junction Road, London N19 5SZ
Tel: 0845 330 2900; fax: 020 7664 7705
Email: customerservices@publicguardian.gsi.gov.uk
www.publicguardian.gov.uk

Age Concern England,the UK’s largest organisation to promote the wellbeing of the elderly; provides vital services, information and support.
Astral House, 1268 London Road, London SW16 4ER
Tel: (information line) 0800 00 99 66
www.ageconcern.org.uk / www.accymru.org.uk

Carers UK - The UK's only national membership charity supporting carers who provide unpaid care for ill, frail or disabled family members or friends.
20/25 Glasshouse Yard, London, EC1A 4JT
Tel: 020 7566 7637; fax 020 7490 8824
www.carersuk.org

Background and guidance for attorneys

A read through of the OPG’s guidance notes may help in understanding an attorney’s duties. Find information on:

  • the attorney’s duties and responsibilities;
  • how your attorney(s) will assess your capacity before making decisions on your behalf;
  • how your attorney(s) can obtain personal information about you from, say, a bank, doctor or solicitor to help make decisions in your best interests;
  • how your attorney(s) should decide what is in your best interests.

Your attorney(s) will also find the guidance useful in helping to build up a full picture of the issues involved.

The law on mental capacity

The Mental Capacity Act 2005 for England and Wales (http://www.legislation.gov.uk/ukpga/2005/9/contents) potentially affects everyone aged over 16 (and in some cases, under 16). It provides a statutory framework to empower and protect people who may not be able to make certain decisions for themselves, such as those with dementia, learning disabilities, mental health problems, and stroke or head injuries.

It clarifies who can make decisions in which situations and how they should do this. It enables people to plan ahead for a time when they may lack capacity. The Act covers major decisions to be made on behalf of a person who lacks capacity to decide for themselves on matters such as their property and affairs, healthcare treatment or where they live, as well as everyday decisions regarding personal care or what they eat.

Mental Capacity Act (2005) code of practice

The code supports the Act and provides guidance and information to all those working under the "legislation"

It guides those working with and/or caring for adults who lack capacity, including family members, professionals and carers. It describes their responsibilities when acting or making decisions with, or on behalf of, individuals who lack the capacity to do so themselves.

Attorneys and other people, such as professionals and paid carers who have a duty of care to someone lacking capacity, must have regard to the code.