Question

To ask the Secretary of State for Justice, whether an assessment is made of an individual's capacity in the appointment of an attorney with lasting power of attorney.

Answer (Dr Phillip Lee)

When someone makes a Lasting Power of Attorney (LPA) a ‘certificate provider’ is required to be impartial and sign the application to certify that the donor is making the LPA by choice, has not been put under any pressure and understands its implications.

Under the Mental Capacity Act 2005 the holder (‘donee’) of a LPA must act in the donor’s best interests, whatever the cause of loss of capacity. The Court of Protection (CoP) has the power to revoke a power of attorney if the donee acts in a way that is not in the donor’s best interests. There may also be a criminal investigation.

Any concerns about the use of a power of attorney should notify the Office of the Public Guardian (OPG) which registers LPAs and has the power to investigate. The OPG acts on such ‘safeguarding referrals’ from relatives, local authorities, care homes and financial institutions. OPG works with organisations such as the CoP, local authorities and the police to protect donors.

OPG received a total of 2,681 safeguarding referrals during 2015/16 and investigated 876 cases, of which 151 cases resulted in an application to the CoP.