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Powers of attorney and other decision-making powers

Published Wednesday, April 24, 2019

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

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This Commons Library 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.

Ordinary powers of attorney

An ordinary power of attorney authorises the attorney to act on behalf of the donor. The power can be general or limited.   A general power of attorney authorises the attorney to do on behalf of the donor anything which the donor can lawfully do by an attorney.  A limited power confers authority only to deal with specified matters and/or to act for a specified time.

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

Lasting powers of attorney

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:

  • Property and Financial Affairs LPA: this enables a donor to authorise the attorney(s) to make decisions on the donor’s behalf in relation to property and financial matters. When it has been registered, it may be used at once, unless the donor specifies otherwise.
  • Health and Welfare LPA: this enables a donor to authorise the attorney(s) to act in relation to all, or only specified, matters concerning their personal welfare. The type of decisions that health and welfare attorneys could be authorised to take might include, for example, decisions on where the donor should live, and giving or refusing consent to medical examination and/or treatment. These decisions can only be taken by the attorney if the donor lacks the capacity to make the necessary decision him/herself.

Enduring powers of attorney

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.

An EPA could authorise an attorney either:

  • to act with immediate effect and to continue to act after the donor had become mentally incapable; or
  • to act as attorney only after the donor had lost mental capacity.

It is no longer possible to create a new EPA but properly executed EPAs made prior to 1 October 2007 continue to be valid. 

Other decision-making powers

The Court of Protection and Court appointed deputies

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.   

DWP appointees

If the only income of the person without mental capacity is social security benefits, 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 interest of that person.  Attorneys and deputies must have regard to the Mental Capacity Act Code of Practice when making decisions.

Commons Briefing papers SN03898

Author: Catherine Fairbairn

Topics: Mental health, Powers of attorney

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