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Mental Capacity Act practice guidance

Part 19

Lasting Powers of Attorney

MCA sections 9-14; Code of Practice chapter 7;

Anyone over the age of 18 who has capacity to make the decision can donate a Lasting Power of Attorney (LPA). This gives someone else the power to make decisions as if they are the person. An LPA needs to be formally registered with The Office of the Public Guardian. (Part 6: How to assess capacity)

There are two types of LPA.

  • A Property and Affairs LPA makes decisions about the person’s finances.
  • A Personal Welfare LPA makes decisions about medical and social care.
  • The same person may be given both forms of LPA. There is a parallel process for donating each type of LPA.

The donor (the person giving the LPA) can limit the scope of the decisions to be made.

Before MCA came into effect there was Enduring Power of Attorney which only related to financial decisions. All EPAs donated before 30 September 2007 are still valid, but no new EPAs can be donated.

All staff must ask if someone has a LPA or EPA before making any decision. Some standard documents includes a prompt to ask this, but not all. Always make sure this is properly recorded. Many people who hold some form of Power of Attorney are confused about the limits of their powers and what they can decide. No decision should be based on what a LPA or EPA says without seeing documentation of their power.

A Property and Affairs LPA can make decisions and take action for the person even if the person has capacity. The LPA needs to ensure either that they are working with the person’s agreement or that the person lacks capacity for that particular decision. A Welfare LPA can only make decisions if the person lacks capacity to make that particular decision.

An LPA makes decisions as if they are the person and must act in the person’s best interests. If there are concerns that an LPA is not acting in a person’s best interests this needs to be discussed with them by the professionals involved. If the matter can’t be resolved it may be appropriate to refer the case to the Safeguarding Adults process. The Public Guardian’s Office can also monitor LPAs.

Emergency treatment should always be given. (Part 29: Emergencies)

If there is dispute about the treatment, or if the LPA documentation is not available, treatment to sustain life will normally be given. An urgent application for a Court of Protection determination under s16 MCA could be made to dispute a LPA’s decision. If this happens seek urgent advice from your legal team. (Part 23: The Court of Protection)

It is possible to confirm if someone holds a valid LPA or EPA by consulting the Office of the Public Guardian. This may take up to five days.

All documentation, forms and advice about LPAs can be found on the Public Guardian website or phone the helpline on 0845 330 2900