Lasting Power Of Attorney
Lasting powers of attorney (LPAs) in English law were created under the Mental Capacity Act 2005, and came into effect on 1 October 2007. The LPA replaced the former enduring powers of attorney (EPA) which were narrower in scope. Their purpose is to meet the needs of those who can see a time ahead when they will not be able – in the words of the Act, will lack capacity – to look after their own personal and financial affairs. The LPA allows them to make appropriate arrangements for family members or trusted friends to be authorised to make decisions on their behalf. The LPA is created and registered with the Office of the Public Guardian (OPG), an executive agency of the Ministry of Justice of the United Kingdom.
The LPA is a specific form of the more general power of attorney which is widely used in countries which have a common law system. The word attorney in this context is someone (or in some circumstances an organisation such as a company) legally appointed or empowered to act for another person. The person giving the power is known as the donor. The word ‘lasting’ in the context of an LPA means that the power may continue even if the person (though still alive) no longer has capacity to exercise the power. The Lasting Power of Attorney can be applied for online. The gov.uk tool offers guidance throughout the process, and prevents the user from making mistakes that may invalidate their LPA application.
The former EPA was simple to administer, but failed to provide for some decisions which may have to be made in circumstances that preclude their being made by the person principally affected. In particular, the attorney’s powers under the EPA were largely defined in terms of money and property, and were not related to decisions on medical matters such as the continuation or otherwise of life-sustaining treatment, or welfare matters such as a move to a different kind of accommodation. The primary purpose of the changes under Mental Capacity Act 2005 (MCA 2005) was to rectify this omission, by creating two LPAs: one for property and financial affairs (the LPA(PFA)) and one for Health and Welfare (the LPA(H&W)).
Administrative and legal background
The LPA system is administered by the Office of the Public Guardian (OPG), an agency of the Ministry of Justice of the United Kingdom. Its contact details are explained in section 2.2 below headed ‘The role of the OPG in relation to Lasting Powers of Attorney’. The OPG was set up in 2007 under the MCA 2005, replacing the similarly-named Public Guardianship Office which had a more limited range of responsibilities. It is headed by the Public Guardian, whose main role is the protection of people who lack mental capacity.
The MCA 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes clear who can take decisions on their behalf, in which situations, and how they should do so. Through the LPA, the Act enables people to plan ahead for a time when they may lose capacity. Detailed guidance is provided by a Code of Practice to the MCA 2005 to the Act, which people working as professionals in this field are required to ‘have regard to’: that is, to observe, unless (having decided in specific circumstances not to do so) they are prepared to explain afterwards – most probably in a post-incident inquiry – why not.
Where there are suspicions that an attorney might not be acting in the best interests of the donor, the OPG will arrange an investigation. If the OPG decides that formal action is required, and more generally if any disputes arise on subjects covered by the MCA, the matter is referred to the Court of Protection (CoP), which is part of the Family Division of the High Court and was set up under the MCA for this purpose. The role of the CoP in decision-making is complementary to that of the OPG in relation to matters of regulation and supervision.