The Mental Capacity Act 2005 sets out provisions for adults to retain a degree of choice and control over who makes decisions on their behalf should they be unable to make those decisions themselves by setting up a lasting power of attorney (LPA).
Section 9 of the 2005 Act states that an LPA allows a person – the donor – to confer the following on one or more people they trust – the donee, more commonly called the attorney:
- The authority to make decisions about:
- The donor's personal welfare and
- The donor's property and financial affairs
- This authority includes making decisions where the person no longer has mental capacity.
A power of attorney is a legal instrument that must be properly created and executed before it becomes effective (Mental Capacity Act 2005, section 9(3)). Although the 2005 Act applies generally applies to those aged 16 years and over, only adults can execute an LPA (Mental Capacity Act 2005).
Efforts by successive governments to improve the uptake of LPAs seem to be having an impact, with some 7 million LPAs now registered with the Office of the Public Guardian. In its latest annual report, the Office of the Public Guardian (2024) stated that it had received 1.37 million requests to register LPAs during 2023–2024, with 1 million requests having been received over the period 2022–2023.
Risk of misuse and abuse by the attorney
LPAs give those appointed as attorney wideranging authority to make decisions for the donor. The instruments are negatively framed, so they initially grant attorneys the authority to make all the decisions they might be called on to make in relation to the person's health and welfare or property and finances.
Because it is for the donor to select their attorneys from people they trust, there is no initial provision for the oversight and supervision of attorneys. The risk of attorneys misusing their authority or abusing the donor is a concern, as this can go unnoticed due to the lack of oversight.
The Public Guardian
The Office of Public Guardian was created by section 57 of the Mental Capacity Act 2005. The Public Guardian's main roles are to:
- Maintain a register of LPAs
- Maintain a register appointing court deputies and to supervise those deputies.
While deputies appointed by the Court of Protection are supervised from their appointment, the Public Guardian has no initial role in supervising attorneys acting under an LPA.
When a concern about the conduct of attorney is raised with the Public Guardian, it then has the authority to investigate. This includes appointing a Court of Protection Visitor to assist in the investigation. The Public Guardian is currently involved in over 3500 investigations (Office of the Public Guardian, 2024).
Under the Mental Capacity Act 2005, section 61, Court of Protection Visitors are appointed by the Lord Chancellor as either:
- Special Visitors, usually doctors with special knowledge and experience of impairments and disturbances to the mind or brain
- General Visitors.
When discharging their duties, Court of Protection Visitors can interview the donor in private, and view and take copies of records such as health records, care records and social services records (Office of the Public Guardian, 2017). Where an investigation upholds a concern, the Public Guardian can bring the matter to the Court of Protection for further action.
Court of Protection's role in protecting donors
The Court of Protection's powers in relation to LPAs are set out in section 22 and 23 of the 2005 Act. The provisions give the Court of Protection the power to decide on the validity of an LPA and to revoke the instrument if it has been created by fraud or undue pressure. The court can also revoke the instrument if the attorney:
- Has behaved, is behaving or will behave in a way that contravenes the attorney's authority, or
- Where the behaviour of the attorney is not in the donor's best interests.
The Court of Protection can also decide questions relating to the meaning or effect of an LPA. The court has the power to:
- Give directions as to the decisions the attorney has authority to make
- Give consent to an act that an attorney wants to carry out
- Give directions to the attorney to keep and produce reports and accounts
- Authorise the making of gifts.
In Norfolk CC v Ca [2024], the Court of Protection used its powers to protect the donor from the risk of abuse and coercive control. The case concerned a woman, aged 79 years, who lacked capacity due to a neurodegenerative disorder. She had executed LPAs for health and welfare and property and finance, naming her daughter as attorney in each case. Health and social service professionals became concerned about the daughter's relationship with her mother and argued that she was not making decisions in her mother's best interests. The local authority brought the case to the Court of Protection, which held that the daughter had:
- Argued with her mother's carers
- Verbally abused her mother
- Told upsetting lies to her mother, including that her dog had died
- Forced her mother to walk unaided and do exercises when in pain
- Thrown food at her mother and force-fed her
- Encouraged her mother to discharge herself from hospital.
The Court of Protection also found that the woman lacked capacity to manage her affairs or to make decisions about her health and care, but that she did retain sufficient capacity to decide on contact with others and had capacity to decide whether or not to revoke the LPA, which she did not want to do.
As the woman lacked capacity to make decisions about her finances and her care, the Court of Protection used its powers under section 22 of the Mental Capacity Act 2005 to restrict the daughter's authority under the LPA.
The judge made further orders under her inherent jurisdiction as a judge of the High Court relating to contact with the woman's daughter. Although the woman was held to have capacity for this area of decision-making, it was found that she was a vulnerable person who was being coerced by her daughter. This allowed the court to intervene and grant orders requiring supervised contact between the woman and her daughter to include supervised telephone conversations, as well as face-to-face contact. The Court also ordered that the local authority and the daughter agree to instruct a psychologist to work with the family to ensure the woman stayed safe, with a view to returning eventually to unsupervised contact.
Protecting donors from abuse
In Norfolk CC v Ca [2024] it could be seen that nurses, carers and social workers were well placed to raise concerns about the conduct of the attorney towards her mother and her exercise of her authority under the LPA. The limited supervision of attorneys by the Public Guardian does place the onus on nurses and others to raise concerns where attorneys do not act in the best interests of donors.
Once the Public Guardian is aware of concerns, it can investigate and bring the matter to the Court of Protection. In more serious cases, local authorities and NHS bodies will bring cases directly to the attention of the Court of Protection.
The Public Guardian has an online form for reporting concerns about attorneys, setting out the most efficient and timely way to raise a concern. It can be found at https://www.gov.uk/report-concern-about-attorney-deputy-guardian.
Conclusion
Although it is encouraging that the number of registered LPAs continue to grow, the initial hands-off approach to the oversight and supervision of attorneys does make the donor susceptible to abuse. Both the Public Guardian and the Court of Protection can investigate and take action against an attorney once a concern has been raised.
Nurses are well placed to identify and raise concerns about the conduct of an attorney. They should make timely referrals to the Public Guardian about any concerns in line with their safeguarding duty to the patients in their care.
KEY POINTS
- The Mental Capacity Act 2005 allows adults to retain a degree of choice and control over who makes decisions on their behalf through a lasting power of attorney (LPA)
- As it is for the donor to select their attorneys from people they trust, there is no initial provision for the oversight and supervision of attorneys, giving rise to a risk of abuse
- When a concern about the conduct of an attorney is raised with the Public Guardian it has the authority to investigate
- The Court of Protection's powers in relation to lasting powers of attorney includes the power to decide on the validity of an LPA and to revoke the instrument if it has been created by fraud or undue pressure