Lasting Power of Attorney (England & Wales): a practical guide for people acting under an LPA in home-care situations
This guide explains, in clear terms, how Lasting Powers of Attorney (LPAs) work in England and Wales, what decisions can be made under each type, when an LPA takes effect, and how to apply the Mental Capacity Act 2005 (MCA) when arranging or managing home care.
1) The two types of LPA and what they cover
a) Property and Financial Affairs (P&F)
Covers money and property: bank and building-society accounts, pensions and benefits, paying bills, selling or renting property, investments, tax and insurance. In a home-care context, this includes paying care-agency invoices, buying equipment and adaptations, and managing Direct Payments or personal budgets.
Activation: once registered with the Office of the Public Guardian (OPG), a P&F LPA can usually be used with the donor’s consent while they still have capacity, if the LPA is drafted that way. Otherwise it’s used only when the donor lacks capacity for the specific financial decision.
b) Health and Welfare (H&W)
Covers daily routine and healthcare: personal care, meals, medication decisions (in line with professional advice), where the person lives, care-provider choices, and consent to medical treatment. The form allows the donor to decide whether their attorney may consent to or refuse life-sustaining treatment on their behalf.
Activation: an H&W LPA can be used only when the donor lacks the capacity to make that particular health or care decision.
Registration for both types: an LPA has no legal force until it is registered with the OPG. Keep the registration page or digital access details available for organisations that need to see proof.
2) When an LPA applies and becomes active
Think in two steps:
- Is the LPA registered? If not, you cannot use it.
- Does the donor have capacity for this specific decision, today?
- If yes, the donor decides. A P&F attorney may still assist with practicalities if the LPA permits use while the donor has capacity and the donor agrees.
- If no, the attorney may decide within the scope of the LPA, following the Mental Capacity Act and acting in the donor’s best interests.
Activation is therefore decision-specific and time-specific, especially for H&W decisions.
3) The Mental Capacity Act 2005 (MCA): the five principles
Every action taken under an LPA must follow the MCA and its Code of Practice. The five statutory principles are the backbone of lawful decision-making:
- Presumption of capacity – assume the person can decide unless it’s shown otherwise.
- Support to decide – give information, communication aids and time so the person can make their own choice wherever possible.
- Unwise decisions are allowed – a choice others think is unwise does not by itself indicate a lack of capacity.
- Best interests – any act or decision for someone who lacks capacity must be in that person’s best interests.
- Least restrictive option – choose the option that achieves the goal while limiting rights and freedoms as little as possible.
4) Assessing capacity in practice
Capacity relates to a particular decision at a particular time. The test is whether the person can:
- Understand the relevant information,
- Retain it long enough to decide,
- Use or weigh it as part of the process of deciding, and
- Communicate their decision (by speech, signs, writing or any means).
If any one of these abilities is missing because of an impairment or disturbance in the mind or brain (permanent or temporary), the person lacks capacity for that decision.
Small adjustments often make the difference: simpler language, written prompts, a quiet room, involving a familiar person, or breaking a complex choice into stages. Record the steps you took to support decision-making.
5) Best interests: how decisions are made when capacity is lacking
When the donor lacks capacity for the decision in front of you, follow a structured best-interests process:
- Clarify the decision to be made (e.g., “increase morning care visits from 30 to 45 minutes”).
- Involve the person as far as possible and consider whether the decision can be delayed to a time when they may regain capacity.
- Consider the person’s wishes, feelings, beliefs and values (past and present), including any written statements, preferences in the LPA, or advance decisions.
- Consult those who know the person well (family, close friends) and the relevant professionals (GP, district nurse, social worker, care-agency care manager).
- Evaluate options and choose the least restrictive option that still meets the need.
- Record your reasoning and the outcome.
Where there is no one appropriate to consult and the decision concerns serious medical treatment or a longer-term change of accommodation, an Independent Mental Capacity Advocate (IMCA) should be involved by the decision-making body (e.g., NHS or local authority).
If a serious dispute remains—especially over life-sustaining treatment, safeguarding risks or major restrictions—the matter can be put before the Court of Protection for a decision.
6) What an attorney can do (with home-care examples)
Property & Financial Affairs (P&F)
- Operate bank accounts and manage day-to-day spending.
- Pay care invoices, set up direct debits with the care provider, and manage payroll if directly employing personal assistants.
- Buy equipment and adaptations (e.g., shower chair, riser-recliner) if affordable and in the donor’s interests.
- Deal with pensions, benefits and council-funded Direct Payments.
- Arrange insurance and pay household bills to keep the home safe and habitable.
- Work with financial advisers or accountants (but the decision remains the attorney’s).
Health & Welfare (H&W)
- Agree to a care plan (timings, tasks, medication prompts or administration arrangements, nutrition and hydration support, falls prevention, contingency plans).
- Choose or change the home-care provider.
- Make day-to-day care decisions: bathing schedules, dressing, menu choices, community access.
- Consent to medical treatment proposed by clinicians; attend reviews with the GP or community teams.
- Where the LPA authorises it, make decisions about life-sustaining treatment in consultation with clinicians, unless a valid and applicable advance decision says otherwise.
7) What an attorney cannot do
- Make “excluded decisions” for the person: for example, consenting to marriage or civil partnership, divorce based on two years’ separation, sexual relations, or voting.
- Override a valid and applicable Advance Decision to refuse specific medical treatment.
- Create or change the donor’s will (only the Court of Protection can authorise a statutory will).
- Make substantial gifts or loans beyond very limited circumstances (see below).
- Delegate decision-making to someone else (you may take advice or hire help, but the decision remains yours).
- Benefit yourself or others financially unless expressly authorised and clearly in the donor’s best interests.
8) Gifts, donations and expenses: narrow powers and careful records
Gifts and donations
Attorneys have a limited legal power to make gifts. Unless the LPA expressly restricts it further, gifts are normally confined to:
- Customary occasions (birthdays or seasonal events), and
- To people (including charities) the donor might reasonably have been expected to benefit,
- Provided the gift is reasonable in value given the donor’s financial position, care costs and ongoing needs.
Anything beyond that—regular transfers to family, paying school fees, letting a relative live rent-free, interest-free loans—usually requires Court of Protection approval. If in doubt, seek advice before proceeding.
Attorney expenses and remuneration
- You may claim reasonable out-of-pocket expenses (postage, printing, mileage, phone costs related to the role). Keep receipts and a simple log.
- Unless the LPA or a court order provides otherwise, a friend or family attorney is not paid a salary. Professional attorneys (e.g., solicitors) may have agreed fees.
Always keep the donor’s money separate from your own and maintain clear records. The OPG can require you to account for decisions and spending, and the Court can order repayment if money has been misused.
9) Working with home-care providers: practical steps
- Share proof of authority: provide a certified copy of the registered LPA or the OPG digital access code. Ask the provider to note who can make which decisions (P&F vs H&W).
- Clarify decision boundaries: if the donor has capacity for day-to-day choices, staff should seek the donor’s consent. If capacity fluctuates, agree a simple capacity-checking approach for key decisions.
- Agree the care plan: visit times, personal-care tasks, moving and handling plans, hydration and nutrition support, medication policy, record-keeping, emergency contacts, and what counts as a “significant change”.
- Medication and health tasks: set whether carers are prompting, assisting or administering medicines, and who holds and reviews the MAR (Medication Administration Record).
- Funding and payments: for P&F, set up direct debits, reconcile invoices and statements, and keep a tidy paper trail.
- Hospital discharge and step-up care: attend planning, ask for a care review, and consider temporary increases in visits. Review again after recovery.
- Safeguarding and concerns: raise issues promptly with the provider, follow their complaints policy, and involve the local authority safeguarding team or the CQC as appropriate. Document everything.
10) Disagreements and how to resolve them
- Within the family: hold a structured meeting, focus on the donor’s wishes and best interests, and keep minutes.
- With professionals: request a best-interests meeting with the GP, community teams and the care provider. Ask for clinical reasoning and risk assessments in writing.
- Independent input: ensure an IMCA is involved where required.
- Persistent or serious disputes: take legal advice and consider an application to the Court of Protection for a specific decision.
11) When an LPA ends or changes
- Death of the donor: all LPAs end immediately; executors then deal with the estate.
- Bankruptcy: a P&F attorney who becomes bankrupt must cease acting in that role.
- Loss of the attorney’s capacity: the attorney can no longer act.
- Divorce or dissolution: if an attorney was a spouse or civil partner, their appointment may end unless the LPA states otherwise.
- Revocation: a donor with capacity can revoke their LPA by a deed of revocation and notifying the OPG.
- Replacement attorneys: if named, they can step in according to the order specified.
- Joint vs joint-and-several: if attorneys are appointed jointly, all must agree and sign; if jointly and severally, any one may act alone. Check the wording.
12) Record-keeping that protects you and the donor
- A decision log for significant matters (what was decided, capacity assessment summary, who was consulted, alternatives considered, and why the chosen option is least restrictive).
- Financial records: statements, invoices, receipts, mileage and expense logs, and notes of any advice taken.
- Care-plan documents: the latest plan, risk assessments, discharge summaries, and professionals’ letters.
- A simple register of who has seen the LPA (banks, utilities, care provider, GP).
- A calendar of reviews (e.g., quarterly care-plan reviews; annual benefits checks).
13) Quick reference checklist
- The LPA is registered and you can produce proof when asked.
- For each decision, you check and support capacity first; move to best interests only if capacity is lacking.
- You follow the five MCA principles every time.
- You keep money separate, pay bills on time, and maintain clear accounts.
- You make only small, customary gifts unless the Court has approved more.
- You choose least-restrictive care options and review them regularly.
- You record who you consulted and why the decision was taken.
- You escalate disputes appropriately and seek advice when needed.
Important: This guide provides general information on law and practice in England & Wales. It is not legal advice. For complex, contested or high-stakes decisions, seek advice from a solicitor experienced in Court of Protection work or contact the Office of the Public Guardian.
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