MCA and the Office of the Public Guardian role
LPAs, EPAs and Deputyship Court Orders
One of the Public Guardian’s functions under the MCA is to establish and maintain registers of LPAs, EPAs and deputyship orders. The registers are useful tools for professionals to use to check if someone has an attorney or deputy, and if an instrument or court order is valid.
The information on the registers includes:
- the name of the person who has an attorney or deputy
- their date of birth
- the type of instrument (LPA, EPA or deputyship)
- whether the instrument is related to property and financial affairs or health and welfare
- the date the instrument was registered
- whether the instrument is registered, cancelled, revoked or expired
- the names of the attorneys or deputies
- whether there are conditions or restrictions in the LPA, EPA or deputyship (but not what they are)
- how attorneys or deputies are appointed to act (for example, ‘jointly and severally’)
- when the deputyship court order expires, if stated by a judge
When working with an adult who may lack capacity, it’s important to check if they have an attorney or deputy who can make, or support them to make, decisions on their behalf. Attorneys and deputies can provide insight on the person’s past and present wishes and feelings and should be consulted when a decision is being made in their best interests. If you find that someone who may lack capacity has an attorney or deputy, make sure to involve them whenever possible in conversations about the donor.
Nurses and other health and social care practitioners need to ascertain if an individual has anyone nominated as an Attorney for Health & Welfare under a LPA, as these people play a vital and legal role and are likely to be the ‘decision-maker’ for the clinical decisions of people unable to consent to care and treatment themselves; they need to be involved in all clinical decisions and their opinion and decision sought by the clinical team and clinical decision-maker (Griffiths 2017; NICE 2018).
As stated above, if an Attorney with the relevant powers exists, they are likely to be the decision maker, thus negating the need for the best interest decision process outlined below. Attorneys are still charged with acting in the individual’s Best Interests, but the professional role becomes one of support to the Attorney in making that decision rather than making the decision themselves.
It is important not to take the existence of LPA at face value. Professionals need to satisfy themselves that the LPA is registered by the Office of the Public Guardian and need to identify the scope of the powers donated. For further information see https://www.gov.uk/government/organisations/office-of-the-public-guardianand https://www.gov.uk/find-someones-attorney-deputy-or-guardian.
With the promotion of LPAs and ADRTs, by charities, patient groups, legal firms, The Office of the Public Guardian and practitioners – more people will make provision for future decisions to guide care and treatment, for times when they lack capacity to consent themselves. Health and social care practitioners need to be aware of the legal standing of LPAs and ADRTs to comply with the MCA, and how to use these in decisions regarding the care and treatment of those individuals who lack mental capacity.
You can apply to search OPG’s register of LPAs, EPAs and deputyship court orders to find if someone has an attorney or deputy by filling out an OPG100 form; found on GOV.uk. https://www.gov.uk/government/publications/search-public-guardian-registers).
1 Reflecting on values and bias within mental capacity decision-making
2 The history and current context of mental capacity legislation and policy
3 The concept of mental capacity
4 Best interests
5 Supported decision making
6 Deprivation of liberty: human rights
7 MCA in clinical decisions for care and treatment
8 MCA and the Office of the Public Guardian (OPG) role