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Mental Capacity Act 2005

Explains how the Mental Capacity Act affects you and how you can plan ahead for when you no longer have the mental capacity to make decisions for yourself. Applies to England and Wales.

  • This information applies to England and Wales.
  • This information applies to adults. It doesn't apply to children unless specifically stated.

What's a lasting power of attorney?

A lasting power of attorney (LPA) is a legal document that lets you appoint someone to make decisions for you.

You can use a lasting power of attorney to plan for when you no longer have capacity to make your own decisions. And to make sure that these decisions are handled by someone you trust.

This includes decisions about your:

  • Money and finances
  • Property
  • Future healthcare
  • Future personal care and welfare

There are two types of lasting power of attorney:

  • For health and care decisions
  • For financial decisions

What is an attorney?

The Mental Capacity Act allows you to use lasting power of attorney to appoint someone called an attorney. This attorney doesn’t have to be a lawyer or someone with specialist knowledge. So you could name someone like your partner, a family member, a friend or a professional.

This attorney has the legal power to make certain decisions for you if you’ve lost capacity to make decisions yourself. In some cases, they can make decisions for you before you lose capacity, if you want them to.

What decisions can my health and welfare attorney make for me?

A health and welfare attorney can only make decisions for you when you’re unable to make these decisions for yourself.

They can decide about:

  • Your daily routine, such as eating and what to wear
  • Routine medical care, including when and where this should happen
  • Moving into a care home
  • Life-saving or life-sustaining treatment

The exact decisions they can take for you depends on what you put in your lasting power of attorney.

Refusing medical treatment decisions

In most circumstances, you can give your health and welfare attorney power to refuse certain treatments for you. For example:

But your health and welfare attorney won't be able to refuse treatment for you if:

  • You’re sectioned under the Mental Health Act in the future, and your treatment is prescribed by the responsible clinician or approved clinician in charge of your treatment at that time. Your attorney will have no legal power to refuse the treatment. This is except for ECT, which they can refuse even in these circumstances.
  • It’s life-saving treatment in an emergency situation. This is unless you've stated very clearly on your lasting power of attorney form that they can refuse life-saving treatment for you.
  • You have the capacity to refuse the treatment for yourself.

What decisions can my financial attorney make for me?

Some things your financial attorney can decide include:

  • Paying bills
  • Claiming or collecting benefits
  • Selling your house or flat
  • Spending money on your house or flat
  • Signing or terminating a tenancy 

You can agree to this type of lasting power to be used as soon as it’s registered, if you still have capacity.

What are the disadvantages of creating a lasting power of attorney?

When you create a lasting power of attorney, you need to give someone a lot of your personal information. And you give them power to make decisions about your life. That's why it’s important to choose someone you can trust.

  • A financial lasting power of attorney involves sharing information about your bank account and finances.
  • A health and welfare lasting power of attorney gives someone authority to make decisions about your life. They'd have access to your personal correspondence and papers, such as your medical notes. They might even be able to decide where you live and who you live with.

Should I have a health and welfare attorney?

It’s more usual for people to have an attorney to manage their finances than to have a health and welfare attorney. You should think about whether having a health and welfare attorney is the best way to plan for your future.

Some questions to think about might be:

  • Could you make an advance decision or advance statement, to try and make sure that healthcare professionals follow your views and preferences?
  • Are there other people you would want to have a say in your future healthcare or personal care? What happens if they disagree? Remember, the attorney is the one who would make the decisions. They would have the final say.
  • What if your capacity to make decisions changes from day-to-day? If you lost capacity to make important healthcare and personal care decisions, would you get it back in the short-term? Could you then start making your own decisions again? Would you be happy to let the health and care professionals make important decisions for you while you lack capacity?
  • Is there a person you would trust to make future decisions about medical treatment on your behalf? Would they listen to what the doctors and healthcare professionals have to say at the time? Would they think about your best interests?

Are there any decisions I couldn't give an attorney power to decide?

You can't give an attorney the power to:

  • Act in a way or make a decision that you couldn't normally do yourself - like anything that breaks the law
  • Consent to a deprivation of liberty being imposed on you without a court order
  • Make a decision that goes against any treatment refusals you set out in your advance decision, if you make your advance decision after appointing the attorney

For example, an attorney under a health and welfare lasting power of attorney can't:

  • Demand specific forms of treatment on your behalf
  • Refuse basic nursing care for you, such as keeping you clean or refusing food and drink that’s given to you in a natural way
  • Refuse life-sustaining treatment on your behalf - unless this is a power you've clearly given them in your lasting power of attorney

They also can't make decisions about your finances, business affairs or property matters in the future. 

Similarly, an attorney under a financial lasting power of attorney can't make decisions about your future healthcare or any personal matters.

The only exception is if you’ve named the same person to be both your financial attorney, and your health and welfare attorney, on separate forms.

How do I make a lasting power of attorney?

To make a lasting power of attorney, you need to:

  • Be aged 18 years or over
  • Have the capacity to make the same decisions that you want to authorise someone else to make

There's a specific form for creating a lasting power of attorney. You can:

You must decide whether you want the attorney to make decisions that relate to your finances or your health and care. You can name the same person as attorney for both. But you’ll need to fill in a separate form for each.

Naming a person as your attorney

The person you name as your attorney must be aged 18 or older. You should speak to them about naming them before you do so.

It’s possible for more than one person to act as your attorney. But you may need to get legal advice to make sure this is valid. 

Completing the form

When you get the form, you'll need to do the following:

  • Name the person or persons you are authorising to act as your attorney, or attorneys
  • Fill out the relevant sections, in writing or online
  • Have someone else sign the form as a witness. They must not be the person who's going to be the attorney
  • Make sure you’ve included information about the purpose of the lasting power of attorney. This includes what decisions you give the attorney authority to make, and what decisions you don’t wish them to make
  • Get the attorney to sign a statement saying they have read the information. And that they understand their duties under the lasting power of attorney, including acting in your best interests
  • Name any people you’d like to be notified when the lasting power of attorney is registered with the Office of the Public Guardian
  • Ask someone to sign your certificate of capacity. This is a certificate that someone else signs to confirm that you understand the lasting power of attorney. And that nobody is forcing you to create it. The lasting power of attorney form has information about who can and cannot sign this certificate

Financial lasting power of attorney

If you’re making a financial lasting power of attorney, you can set out specific decisions that you want them to make about your property or finance. Or you can give them power to make decisions about your property and finance.

You can also say that they can make decisions as soon as the lasting power of attorney is registered. Or they can only begin making decisions when you lack capacity.

An attorney under a financial lasting power of attorney cannot make any decisions about health or care matters on your behalf.

What can I do if my attorney doesn't follow my instructions?

If your attorney acts dishonestly or doesn’t follow your instructions, you or someone who looks after your interests can:

The Court of Protection can remove the powers of an attorney for:

  • Fraud
  • Dishonesty
  • Failing to act in your best interests
  • Not being able to act as attorney through illness or other reasons

The Court of Protection can also:

  • Decide what your lasting power of attorney means and what it gives your attorney power to do, if there’s any disagreement about its meaning
  • Give instructions on how the attorney should carry out the instructions in your lasting power of attorney

The Court cannot change any of the instructions you put in your lasting power of attorney.

What might happen if I decide not to make a lasting power of attorney?

For health and care decisions

  • If you’ve made an advance decision, healthcare professionals should follow this, including any medical treatment that you wish to refuse.
  • If you’ve not made an advance decision, healthcare professionals will make the decision in your best interests. They’ll also do this if they need to make a decision that’s not covered in your advance decision. They should consult anyone who’s important. For example, a partner or close family members. They should also consult your advance statement, if you’ve made one.
  • The court could appoint a deputy. But this doesn’t happen very often for health or care decisions.
  • The court could make decisions on your behalf.

For financial decisions

  • Someone who already supports you to manage your finances, property and affairs could apply to the Court of Protection to be appointed as your deputy.
  • You may have complicated affairs that would be better handled by a single person. In this case, a professional acting on behalf of the local authority could apply to the court. The court will appoint a person they consider suitable to be your deputy.
  • If you’re in a care home and most of your income is from benefits, the Department for Work and Pensions (DWP) may appoint an appointee to manage your benefits. This should only happen if you don’t own any property, such as a house or flat.
< Advance decisions Deputies >

This information was published in April 2023. We'll revise it in 2026.

Note: this page was updated on 11 March 2024 to correct a previous error in the section 'Are there any decisions I couldn't give an attorney the power to decide?'

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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