Getting Lasting Power of Attorney whilst in psychiatric hospital

My mother has just come off Section 3 and a provisional discharge date has been set again. I already have an old EPA from 2007 for financial and property but not for health and welfare. Can I now apply for a health and welfare LPA whilst she is in hospital? There are covid visiting restrictions in place allowing only one visit per week of one person and social distancing. I suspect removal of section 3 is preamble to use DOLS to impose best interests decision for discharge.

You cannot ‘apply’ for an LPA: if your mother has mental capacity she can make an LPA, appointing you to act on her behalf. If she does not have mental capacity to make an LPA, you can apply to the Court of Protection for deputyship. I understand that the court is reluctant to appoint a health and welfare deputy, unless there are compelling reasons for doing so.


Just to add to, a person’s ability to make a Lasting Power of Attorney falls outside the scope of orders made under the Mental Health Act 1983 (as amended). You may wish to seek the support of a lawyer who specialises in capacity law. Moreover, it may be a good idea to ensure an independent healthcare professional provides a capacity report in matters like the one you describe, as a safeguard. All the best.

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Is is always the case that the decision maker does the capacity test, for example a social worker rather than a doctor. If you disagree with the results of a capacity test can you get someone else to do another one, for example a solicitor? Thanks for answers

It’s always the person relying on the decision to assess capacity

It would seem to contradict the purpose of the act to seek out the decision you want! Steve

Hello Steve,
Yes would seem so, should be different person.

When you say “decision maker”, were you meaning for the decision on whether your mother has capacity to make a LPA? If she were to speak to a solicitor then that solicitor would decide, but might also obtain the report on capacity that @SocialWorkerGary mentioned. Your mother could make an LPA without a solicitor as the forms are all online (see the LPA page).

Or did you mean some decision made for your mother, e.g. care or residence? A solicitor specialising in Court of Protection work could advise you about that, though you could get some general pointers here.

My initial query was about getting a LPA despite being in hospital, so this is about capacity to appoint an LPA. My second point was about a decision maker under the Care Act for care and residence and finance and whether the test for capacity should be carried out by someone else than the decision maker, who might have a vested interest in the person testing as lacking capacity. My basic premise is that a person should be helped to make their own decisions whenever possible rather than this power being taken away through BI.

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You’ll find that lawyers and professionals alike will pick up on the language you use, but I’ll try and unpick what you’re aksing.

  1. You cant ‘get’ an LPOA, but your mother, if she has capacity to ‘make’ a LPOA can do this herself, with support or via a solicitor. As @Jonathan said, you mother doesn’t need a solicitor or lawyer to apply (but it might be wise if you want the expert guidance). On the LPOA application there is someone called a Certificate Provider, who could be a medical, health or social work professional who can confirm the person wishes to make a LPOA. This can also be done by someone who knows the person for more than 2 years, but there are rules about who this person can not be. There is some more guidance here Creating an LPA - Frequently asked questions - Office of the Public Guardian

If they do not have capacity to make a LPOA, then we are in the arena of Court Appointed Deputy(ship), which you may wish to seek independent legal advice.

  1. Decisions around Care Act are a little tricky to answer, as some decisions in the Care Act are not about capacity, but other things like eligibility or how to meet eligible needs. For example, the assessor who is likely to be a social worker or assistant social worker (or equivalent) will complete a s9 Care Act assessment for eligibility. This decision is for the assessor in consultation with your mother (and others) how to meet eligible needs. The same applies if the care is Aftercare under s117 Mental Health Act (as amended by s75 Care Act). For questions like residency, if the person lacks capacity, in most cases the same assessor will lead on the MCA assessment and normally the Best Interest Decision (in the absence of anyone with legal authority to make that decision). Sometimes newly qualified social workers or unregistered practitioners may have a senior social worker chair meetings. If you disagree with a decision, its always best to speak with the named professional, as often Best Interest Meetings are held in these cases. Then residential placements also touch on the Deprivation of Liberty Safeguards / Framework, and another assessment is conducted for this by a Best Interest Assessor and a doctor.

Regarding conflicts, its not normally a conflict if the same professional leads on all these if they are qualified, professionals have a Code of Standards to follow and a raft of procedures linked to where they work. They should in most cases help you understand the framework they work under.

You mention about helping the person to make the decisions and you’re right, the principles of the Mental Capacity Act 2005 say that practicable steps must be taken to aid a person to make decision, before making a finding that the person lacks capacity.

I hope that helps provide an oversight of your questions.

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Hello Gary,

Thanks for all the info, a very complicated subject it seems. Very legalistic and hard to get at. In my case I have encountered a lack of transparency and refusal to supply promised documents on time for meetings or to supply them at all; use of Royal mail instead of email and then claiming delayed etc, Last minute problems with meeting arrangements, denial of solicitor to attend virtual meeting being the latest ploy for some reason or other. Always got an excuse or way out of requests. Very obstructive. Thinking about calling on MP’s to try and help again but last time hospital refused to allow any involvement due to mother not consenting.