In this article Robert Mair looks at Personal Welfare Lasting Power of Attorney.

What is a Personal Welfare Lasting Power of Attorney (LPA)?

A Personal Welfare LPA allows someone to make decisions in your best interests should you lose the mental capacity to make your own choices.

The person, called an attorney, can make decisions about:

  • Your permanent residence
  • Appropriate care and accommodation
  • The medical treatment and therapies you agree to, and those you don’t
  • Your dress, dietary requirements and personal appearance
  • Activities and holidays

A Personal Welfare LPA does not cover property and affairs. If you wish to have someone make decisions about your property and affairs, you need to register a separate Property and Affairs LPA.

Mental Capacity Act 2005

LPA was part of the Mental Capacity Act 2005. Prior to the act, there was no specific mental capacity legislation in England and Wales and people wishing to plan for their future faced several problems. For example:

  • Courts could only make decisions about finances, not welfare
  • No clear legal framework for attorneys existed
  • Enduring Power of Attorney (EPA) was unregistered and open to abuse

In the Mental Capacity Act, LPA replaced EPA.  However, if you have an existing EPA:

  • An LPA can replace an un-registered EPA
  • An LPA can sit alongside an unregistered EPA
  • You can revoke the EPA and replace it with an LPA

For more information, visit the Office of the Public Guardian website.

Who can make a Personal Welfare LPA?

Anyone over the age of 18 can make an LPA. However, you must understand what an LPA is, and what creating one means should your mental capacity diminish.

Couples cannot make a joint LPA – only individuals can make one. However, individuals can grant their partner power of attorney and vice versa.

The role of the attorney

Your attorney should be someone you know and trust – and you should be confident that any actions they take will be in your best interests.

A single attorney will make all of the decisions as laid out in the LPA on your behalf, but you can also appoint:

  • Two or more attorneys to act together – they must make all of the decisions together and agree on your best interests. Appointing 2 or more attorneys is a good way to protect yourself because there needs to be agreement from all parties. But if the attorneys don’t agree, it can delay decisions. Also, the LPA could be cancelled if the attorneys cannot work together, or if 1 dies or loses mental capacity.
  • Two or more attorneys to act together and independently – in this model, the attorneys can act on their own or together. This is useful if 1 or more of your attorneys is often abroad. Unlike the together model, if 1 of your attorneys dies, the LPA still stands.
  • Two or more attorneys to act together in respect of some matters and independently in respect of others - This gives you safeguards on major decisions - provided they are stipulated in the LPA - because it ensures the attorneys have to reach a consensus, but it allows attorneys to act independently on smaller decisions.

When appointing more than 1 attorney, you should specify how you want them to act. If you do not, they will automatically be appointed together.

Restricting the attorney and LPA stipulations

Despite the powers granted in an LPA, an attorney cannot make you:

  • Get married or consent to a civil partnership
  • Get divorced on the basis of 2 years’ separation
  • Put a child up for adoption, or make you adopt a child
  • Vote

Further stipulations can also be laid out in the LPA to limit the attorney’s power in certain situations. For example, you may:

  • Include a clause ensuring the attorney has to speak to another designated person before making a decision
  • Restrict your attorney’s powers – so they might have a say in your social care, but not healthcare

Any clauses included in the LPA must be clearly written and straightforward to implement. If the instructions are complicated the LPA can be cancelled.

Healthcare decisions

If your attorney has the power to make unrestricted welfare decisions, they can:

  • Give or refuse consent for medical treatment, including operations
  • Make decisions on dental or optical care
  • Allow you to take part in research projects

However, your attorney cannot demand medical treatment on your behalf if doctors feel it isn’t necessary or worthwhile.

You must also give your attorney express permission in the LPA for you to undergo ‘life-sustaining treatment’, which includes:

  • A serious surgical operation, such as a heart bypass
  • An organ transplant
  • Chemotherapy, radiotherapy or other cancer treatments

If you give your attorney permission for you to undergo life-sustaining treatments, the attorney can also give doctors permission to withdraw the treatment should it be ineffective.

The Office of the Public Guardian

All LPAs need to be registered at the Office of the Public Guardian (OPG). The OPG is part of the Ministry of Justice and is responsible for registering and maintaining the records of registered LPAs.

An LPA can be made at any time, but it can only be used once it has been registered with the OPG. It can spend years registered before being used, so you should check the details of the signed LPA from time to time. Your LPA can be registered by yourself, your attorney, or a legal professional.

You cannot make any changes to a signed, witnessed and certified LPA. If important information has changed – such as who your attorney is – you will need to make a new LPA. However, if contact details for your attorney have changed, these can be recorded on a separate piece of paper and kept with the LPA.

An LPA costs nothing to set up, but a fee is charged to register it.

Safeguards of the LPA

Several safeguards are built into an LPA.

The first safeguard is the signing and presentation of a Part B Certificate – this confirms that you understand the LPA and are under no pressure to make one. Without a certificate, the LPA is invalid. There are 2 types of certification:

  • Knowledge-Based Certificate Provider - someone who has known you for at least 2 years
  • Skills-Based Certificate Provider - a registered healthcare professional, GP, solicitor or social worker
  • Your attorney cannot be a certificate provider, and nor can a member of your or your attorney’s family. Business partners, employers or employees of yourself and your attorney are exempt as are the owner, director(s) and staff of a care home if that is where you live

The second safeguard is the notification of Named People. These are up to 5 people included on the LPA who are notified when it is registered. If they have concerns about the LPA, they can object.

The third is that the signing of the LPA must also be witnessed by another individual. They should ensure you and your attorney have signed and dated the LPA.

Appeals, objections and the Court of Protection

Only you, your attorney(s) or named people can object to the registration of an LPA. If other individuals wish to object, they need the Court of Protection’s permission.

Objections can be made on the following grounds:

  • Factual grounds. These complaints should be made to the OPG. These include:
    o The death of your attorney
    o A divorce or annulment of a civil partnership between you and the attorney (unless this is included in the LPA)
    o The attorney lacks the mental capacity
    o The attorney has disclaimed their appointment
  • Prescribed grounds. These complaints should be made to the Court of Protection and include:
    o The LPA is not valid as you don’t possess the capacity to make an LPA
    o The LPA was revoked
    o You were pressured to make the LPA
    o The attorney isn’t acting in your best interests

The Court of Protection has a variety of powers, including:

  • The final say on mental capacity
  • Jurisdiction over personal welfare and healthcare
  • The ability to appoint deputies to make decisions for you
  • The ability to determine whether an LPA is valid
  • Provide advice on implementing the LPA
  • The ability to remove an attorney
  • Grant more power to the attorney if you lose capacity

If your attorney makes a decision that you disagree with, a ‘best interests’ test is applied. This will consider the guidelines set out in the LPA Code of Practice. You can also apply to the Court of Protection to review decisions made by the attorney.

Alternatives to making a Personal Welfare LPA

Instead of making a Personal Welfare LPA, you could consider other options.

Writing a statement of your wishes: This isn’t legally binding, but people charged with looking after you are required to take notice of the contents when acting in your best interests.

Write your own care plan: This provides details of the long-term care that you would wish to receive.

Create an ‘advance decision’ with regard to the medical treatment that you would like – or would not like – to receive:  This is legally binding and would be applied should you lack capacity to make decisions.