Powers of attorney and other decision-making powers

This briefing paper deals with powers of attorney and other ways of authorising someone to make a decision for another person in England and Wales.

Powers of attorney

A power of attorney is a deed by which a person (the donor) authorises another person (the attorney, sometimes called the donee) to act on behalf of the donor. It is not a document which can be applied for by one individual on behalf of another. There are several different types of power of attorney.

An ordinary power of attorney automatically comes to an end as soon as the donor loses mental capacity.

The Mental Capacity Act 2005 created a new form of power of attorney, the lasting power of attorney (LPA). An LPA enables the donor to appoint one or more attorneys to make decisions on their behalf at a time when they no longer have the mental capacity to make those decisions themselves. There are two types of LPA dealing respectively with property and financial affairs and with health and welfare.

LPAs replaced enduring powers of attorney (EPAs) which could authorise an attorney to act in relation to the donor’s property and financial affairs but not to make decisions on health and welfare matters. It is no longer possible to create a new EPA but properly executed EPAs made prior to 1 October 2007 continue to be valid.

Government consultation on modernising LPAs

On 20 July 2021, the Ministry of Justice, in collaboration with the Office of the Public Guardian, published a consultation: Modernising Lasting Powers of Attorney. The consultation will close on 13 October 2021.

The consultation considers proposals to move to a predominantly digital service intended to be simpler and easy to use. Alternatives would remain for those unable to use the internet. New safeguards to protect against fraud and abuse are also proposed.

Other decision-making powers

If a person does not have the mental capacity to make an LPA, it may be necessary to apply to the Court of Protection. The Court of Protection makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to make those decisions themselves. There are two types of deputy, one for property and financial affairs and one for health and welfare.

If the only income of the person without mental capacity is social security benefits, and they have no property or savings, it may not be necessary for a deputy to be appointed. Instead, the person’s benefits may be managed by an appointee, appointed by the Department for Work and Pensions.

“Best interests” decisions

Anyone making a decision for a person who does not have the mental capacity to make their own decision, must act in the best interests of that person. Attorneys and deputies must have regard to the Mental Capacity Act Code of Practice when making decisions.