Lasting Power of Attorney: A Guide for Care and Health Staff
A lasting power of attorney lets someone make decisions for a person who lacks capacity. Learn the two types, what attorneys can decide and what staff should check.
A lasting power of attorney (LPA) is a legal document that lets a person choose someone they trust to make decisions for them if they later lose the ability to make those decisions themselves. Care and health staff meet attorneys regularly, often when a relative arrives and says they are “in charge” of a resident’s care, and they need to know what that does and does not mean. This guide explains the two types of LPA in England and Wales, what to check and where the limits lie. It works alongside our guide to Mental Capacity Act and DoLS training. Scotland and Northern Ireland have different systems.
The two types of LPA
According to GOV.UK, there are two types of lasting power of attorney, and a person can make one or both:
- Health and welfare. This covers decisions about daily care, medical treatment and where the person lives, including a move into a care home.
- Property and financial affairs. This covers things such as banking, paying bills, managing benefits and looking after property.
The difference in when they can be used matters. A health and welfare LPA can only be used when the person is unable to make their own decisions. A property and financial affairs LPA can be used as soon as it is registered, if the person gives permission. So an attorney with only a property and financial LPA has no authority to consent to treatment or choose a care home.
Who can be an attorney?
An attorney must be at least 18 and must have mental capacity. They can be a relative, a friend, a partner or a professional. For a property and financial LPA, a person who is bankrupt or subject to a debt relief order cannot act. Most people appoint someone close to them, and some name more than one attorney.
Registration: no registration, no authority
An LPA has to be registered with the Office of the Public Guardian before it can be used. GOV.UK states that without registration the attorney cannot make decisions. At the time of writing, the registration fee is £82 per LPA, or £164 for both types, and making an LPA takes around 8 to 10 weeks if there are no mistakes. Fees can change, so check GOV.UK for the current figure. A certificate provider, who must be 18 or over and cannot be the donor or an attorney, confirms that the person understands what they are signing.
What attorneys can and cannot decide
An attorney under a health and welfare LPA must follow the Mental Capacity Act. That means they must act in the person’s best interests, take the person’s past and present wishes into account and choose the least restrictive option. Two points often cause confusion:
- An attorney can only make decisions about life-sustaining treatment if the LPA expressly says so. If you are unsure, read the document rather than relying on what the family tells you.
- An attorney cannot overrule a decision the person is still able to make. If the person has capacity for a particular decision, that decision is theirs.
An LPA is also different from an advance decision to refuse treatment, which records specific treatments someone does not want, and from a court-appointed deputy, who is appointed after capacity has been lost.
What should staff do?
- Ask to see the document. You need the registered LPA, or a certified copy, to confirm the attorney’s authority and what it covers.
- Check which type it is. Do not accept a financial LPA as authority for care or treatment decisions.
- Check the capacity first. A health and welfare LPA only applies if the person lacks capacity for the decision in question, so the assessment still matters. Our guide to best interests decision-making explains the process.
- Record it clearly. Note the type of LPA, the attorney’s name and contact details, and any limits in the care plan.
- Escalate concerns. If you think an attorney is not acting in the person’s best interests, tell your manager and follow your safeguarding policy.
- Remember advocacy. If there is nobody suitable to consult, an advocate may be needed, as our guide to the IMCA role explains.
Common mistakes to avoid
- Treating a family member as the decision-maker without seeing a registered LPA.
- Assuming “next of kin” has legal authority. In England and Wales, next of kin has no automatic power to make decisions for an adult.
- Asking an attorney to consent as soon as the LPA is shown, without checking whether the person has capacity for that decision.
- Failing to keep a copy of the LPA in the care records.
Frequently asked questions
Can an LPA be made after capacity has been lost?
No. The person must have capacity to make one. If they have already lost capacity, an application to the Court of Protection may be needed.
Does the attorney have to agree with the care team?
No, but they must act in the person’s best interests. If you disagree, discuss it and escalate if needed.
Is next of kin the same as an attorney?
No. Next of kin is not a legal role with decision-making power.
Key takeaways
- There are two types of LPA, and only health and welfare covers care and treatment.
- It must be registered with the Office of the Public Guardian to be used.
- Always check the document and the person’s capacity.
To strengthen your practice, explore our healthcare CPD courses.
Sources
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Learnsignal Healthcare Education Team
The Learnsignal Healthcare Education Team creates CPD and compliance training content for nurses, allied health professionals, and care providers, drawing on current regulatory guidance from bodies including NMBI and equivalent professional regulators.
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