More about LPAs(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLasting powers of attorneyDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLasting powers of attorneyDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLasting powers of attorney:consent, andLasting powers of attorneyDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLasting powers of attorneyDeputies:who may bePersonal welfare decision:meaningMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLasting powers of attorney:personal welfare decisionLasting powers of attorney:donorLasting powers of attorney:attorneyLasting powers of attorneyDeputies:who may beCodes of Practice:Mental Capacity Act 2005 Code of Practice (2007):para 7.21Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLasting powers of attorney:advance decisions, andLasting powers of attorneyDeputies:who may beAdvance decisions:LPAs, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLasting powers of attorney:advance decisions, andLasting powers of attorneyDeputies:who may beAdvance decisions:LPAs, and
3.114Although not fully appreciated, the new personal welfare LPA was the ‘game-changer’ in the MCA 2005.
3.115The previous common law position in relation to incapacitated persons was that the clinician, social worker or other professional carer was under a duty to give any treatment or care necessary to preserve their life, health or well-being which was in their best interests. In other words, the best interests care or treatment decision was taken by the relevant professional.
3.116Where a registered LPA is in force, the position now is that there is always someone from whom the relevant professional requires a consent. For as long as the receiver of the proposed care or treatment has capacity, treatment and care requires their consent. If they lack capacity to consent or refuse consent, the professional must go to the person nominated by them to make the decision.
3.117This represents a considerable shift in the balance of power. Any adult with capacity can now nominate a trusted family member, friend, colleague or professional to make personal welfare decisions for them which they are unable to make in the future, in preference to leaving the best interests determination to the relevant professional.
3.118The necessary detail is dealt with in the relevant chapters. However, it is probably helpful to emphasise the following points about LPAs at the outset:
•The person who makes the LPA is called the ‘donor’. Strictly speaking, a person appointed is a ‘donee’. However, in practice most people prefer ‘attorney’ because it is more natural and was the term used for many years in relation to the old-style EPAs.
•More than one attorney can be appointed but, if more than one, the document creating the LPA must state whether they are only authorised to make decisions jointly or can act alone or jointly (‘jointly and severally’).
•An LPA is not valid unless and until it has been registered (that is, stamped and entered on a register) by the Public Guardian.
•Completing an LPA is not difficult but involves using the prescribed form, and there are separate forms for the creation of a personal welfare LPA and for the creation of a property and financial affairs LPA.
•An attorney must act in accordance with the statutory principles and best interests requirements in MCA 2005 s4.
•What constitutes a ‘personal welfare’ decision is not exhaustively defined. However, the range of best interests decisions which may be made by a personal welfare attorney on behalf of an incapacitated person is likely to be extensive. The main Code of Practice suggests that they include decisions about:
•where the incapacitated person should live and whom they should live with;
•their day-to-day care, including diet and dress;
•whom they may have contact with;
•consenting to or refusing consent to medical examination and treatment;
•necessary arrangements for medical, dental or optical treatment;
•community care assessments and the provision of community care services;
•participation in social activities, leisure activities, education or training;
•personal correspondence and papers;
•rights of access to personal information about the donor;
•complaints about their care or treatment.
1See Code of Practice para 7.21. •This decision-making authority is subject to the restriction that a donee may only make personal welfare decisions which he or she reasonably believes the donor lacks capacity to make for themselves.
2MCA 2005 s11(7)(a). Furthermore, a personal welfare donee has no authority to give or to refuse consent to life-sustaining treatment unless the LPA document expressly permits this.
3MCA 2005 s11(7)(c) and (8). •A donor may revoke the power at any time he or she still has capacity to do so.
4MCA 2005 s13(2). •The Court of Protection can revoke an LPA in certain circumstances, for example where a donee has contravened their authority or has behaved in a way which is not in the person’s best interests.
5MCA 2005 s22(3). Interplay between advance decisions and LPAs
3.119An advance decision to refuse a particular treatment is not valid if the person later makes an LPA authorising an attorney to decide whether or not to consent to the particular treatment in the event they lack capacity to make the decision.
6MCA 2005 s25(2)(b).3.120That restriction aside, the existence of an LPA does not in itself prevent an advance decision from being valid and applicable.
7MCA 2005 s25(7). Indeed, a valid and applicable advance decision made by a person with capacity after making an LPA prevents their donee from consenting to that treatment. This is because, other than the statutory exception just referred to, a donee’s authority is subject to the person’s advance decision ‘rights’ in MCA 2005 ss24–26.
8MCA 2005 s11(7)(b). Furthermore, a donee may only make those personal welfare decisions which he or she reasonably believes the donor lacks capacity to make
9MCA 2005 s11(7)(a). and the advance decision has effect as if the refusal of treatment was made with capacity at the time the treatment is proposed.
10MCA 2005 s26(1).