MCA and the Office of the Public Guardian role
LPAs vs EPAs
There are three tools which support attorneys to make decisions in the donor’s best interests.
- Lasting Powers of Attorney (LPAs)
- Enduring Powers of Attorney (EPAs)
- Deputyship court orders.
LPAs and EPAs are created when the person has capacity to choose who they would like to appoint as their attorney. If someone has already lost capacity, an application can be made to the Court of Protection to appoint a deputy to make, or help make, decisions on their behalf. The MCA replaced EPAs with LPAs, but valid EPAs still exist and must be registered by OPG if the donor has lost or is losing capacity to manage their own affairs.
LPAs and EPAs are created in two stages:
- Drawing up the instrument
- Formal registration by OPG.
Differences between EPAs and LPAs:
- Only covers property and financial affairs
- Can be used before the donor loses capacity but must be registered with the Public Guardian when the donor can no longer manage their own affairs (or when they start to lose capacity)
- Can be used when the donor still has capacity to manage their own affairs; but only if the donor has given permission and this is specified when the instrument was drawn up.
- There are two types of LPA:
- Property and Financial Affairs: gives the attorney the authority to manage, or help manage, the donor’s financial decisions, for example, the sale of the donor’s property
- Health and Welfare: gives the attorney the legal right to be consulted by health and care professionals, and to consent on behalf of the person for treatment if the donor lacks capacity to give consent themselves. A donor may also decide to give the attorney authority to give consent to or refuse life sustaining treatment if they lack the capacity to do so themselves.
- Until LPAs have been registered by OPG, they are not legally valid, and attorneys do not have authority to be the donor’s decision maker.
- Property and Financial affairs LPAs can be used when the donor still has capacity to manage their own affairs; but only if the donor has given permission and specified this during the instrument’s execution.
- Health and Welfare LPAs can only be used when the donor lacks the capacity to make the specific decision for themselves (MCA Code of practice 2007).
Valid LPAs and EPAs:
LPAs are only legally valid, and can only be officially used, if they have been registered by OPG. Failure to check the validity of an LPA may result in an attorney making decisions on behalf of the donor, without the legal authority to do so.
Although EPAs can be used before they have been registered, they must be registered with the OPG when the person is losing, or has lost, capacity to manage their own affairs.
Some donors, when creating their EPA, may have included a restriction to specify that it can only be used if there is medical evidence to support loss of capacity. Therefore, in these instances, an attorney who is using an EPA before it has been registered may be breaching the terms of the instrument.
The same principle applies to LPAs. Although LPAs must be registered before use, a donor can specify that the instrument can only be used if loss of capacity has been medically proven. When presented with an LPA, it’s crucial to look for conditions or restrictions which limit the attorney’s powers.
Every registered LPA will have a perforated stamp at the bottom of the front page, saying ‘Validated’. A stamp or box – or both – on the front page of the form will also show the date of registration.
There have been different versions of LPA’s over time; to view samples of previous versions please visit GOV.UK.
A registered EPA will have a perforated stamp on the front page saying ‘Validated’ and a stamp at the top with the date of registration.
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