Power of Attorney Health and Welfare

Your Attorneys

Key Legal Duties and Principles

• Best interests: All decisions must be made in the donor’s best interests (MCA 2005, s.4), taking into account the donor’s past and present wishes, feelings, beliefs and values, and consulting relevant others where appropriate.
• Presumption and support for capacity: Presume the donor has capacity unless it is established otherwise; take all practicable steps to help the donor decide before concluding they lack capacity (MCA 2005, ss.1–3).
• Respect for unwise decisions: Do not treat the donor as unable to decide merely because they make an unwise decision.
• Least restrictive option: Choose the option that is least restrictive of the donor’s rights and freedoms while achieving the intended purpose.
• Personal performance and good faith: Make decisions personally (no delegation unless expressly authorised), act in good faith, avoid conflicts of interest, and not profit from the role (save for properly incurred expenses or agreed remuneration if a professional).
• Confidentiality: Keep the donor’s information confidential and handle it lawfully.
• Compliance and supervision: Comply with any LPA instructions and preferences, directions of the Court of Protection, and guidance from the Office of the Public Guardian (OPG). Decisions may be reviewed, and attorneys can be investigated by the OPG.
• Record-keeping and segregation (P&F LPA): Keep proper accounts, receipts and decision records; keep the donor’s money and property strictly separate from your own.

Can attorneys view your legal documents?

Your replacement attorneys

• Sole original attorney: If that attorney can no longer act, the replacement attorney(s) take over. If there are two or more replacements, their default mode of acting is jointly.
• Original attorneys appointed jointly: If any original joint attorney can no longer act, the original joint appointment fails. All named replacement attorneys step in to act (by default, jointly). Remaining original attorneys cannot continue.
• Original attorneys appointed jointly and severally: If any original attorney can no longer act, all named replacement attorneys step in and, by default, act jointly and severally alongside any remaining original attorneys.
• Mixed appointments (joint for some decisions, jointly and severally for others): Replacement attorneys take over the “joint-only” decision-making once any original joint attorney can no longer act; for “joint and several” decisions, they act alongside remaining originals, unless the LPA provides otherwise.

Note: An LPA cannot “reappoint” remaining original attorneys to convert a joint appointment into joint and several after failure; continuity must be achieved by proper replacement attorney drafting.

Life Sustaining Treatment Decisions

Health and Welfare only

People to Notify

Who will register the power of attorney?.

Certificate Provider

In England and Wales, a certificate provider is an independent person who must sign a Lasting Power of Attorney (LPA) after the donor. The role is a statutory safeguard under paragraph 2(1)(e) of Schedule 1 to the Mental Capacity Act 2005 (MCA 2005). The certificate provider gives an informed opinion that the donor understands the LPA, is acting freely (without fraud or undue pressure), and that there is no other reason the LPA should not be made. Without a valid certificate, an LPA is not capable of registration.

Core Responsibilities

• Form an independent opinion that, at the time of execution:
  • the donor understands the nature and scope of the LPA and any instructions/preferences it contains;
  • the donor is not subject to fraud, coercion, or undue influence; and
  • there is no other bar to creating the LPA.
• Speak with the donor privately wherever possible (i.e., without attorneys or interested persons present) to assess understanding and voluntariness.
• Review the completed LPA (including any restrictions/instructions and the summary of attorneys’ legal duties) before certifying.
• Complete and sign/date the certificate section of the prescribed LPA form accurately and in sequence (after the donor has signed and before attorneys sign). Errors or missing dates will lead to rejection on registration.
• Be prepared to evidence the opinion if validity is later challenged (e.g., contemporaneous notes of questions asked and answers given).

The Court of Protection has confirmed that certification requires more than witnessing a signature; the provider must take steps to satisfy themselves on the statutory matters. In TA v Public Guardian (2023), the court held that a bare assertion without inquiry is insufficient; a certificate may be treated as invalid if the provider did not genuinely form, and cannot evidence, the required opinion.

Who can act

Two routes are recognised:

• Knowledge-based: a person aged 18+ who has known the donor well for at least two years (e.g., a friend, neighbour, colleague).
• Skills-based: a person with relevant professional skills to assess understanding and voluntariness (e.g., solicitor, registered healthcare professional, registered social worker, IMCA).

In all cases the provider must be independent.

Who cannot act (non-exhaustive but commonly engaged exclusions)

• Any attorney or replacement attorney named in the donor’s LPA (or in any other LPA/EPA for the donor).
• Family members of the donor or of any attorney (including spouses/civil partners, in-laws, step-relatives).
• Unmarried partners or romantic partners of the donor or of any attorney.
• Business partners or employees of the donor or of any attorney.
• Owners/managers/directors or employees of a care home where the donor lives.
• Anyone under 18 or who lacks capacity.

These exclusions are designed to protect against conflicts of interest at creation.