LPAs and the Mental Health Act
Guidance from Estate Advisory Group
Detention under the Mental Health Act overrides parts of a welfare LPA, but not all of it.
What the attorney loses
If the donor is detained and treated under the Mental Health Act, the attorney cannot refuse the psychiatric treatment authorised by that Act, and cannot decide where the donor is detained. The Mental Health Act framework takes priority for those decisions.
What the attorney keeps
- Decisions about physical health treatment unrelated to the detention.
- Consultation rights: attorneys should be involved in care planning and section 117 aftercare.
- Welfare decisions once detention ends.
- Financial authority under a separate property and financial affairs LPA, which is unaffected.
Practical steps
- Give the ward and the responsible clinician a copy of the LPA.
- Ask to be recorded as the donor's attorney for consultation and aftercare planning.
- Consider whether the donor also needs an Independent Mental Health Advocate.
- Keep notes of every meeting; aftercare disputes are common.
Common questions
Can I discharge the donor from section?
No. That is for the responsible clinician, the nearest relative in some cases, or a tribunal.
Am I the nearest relative because I am the attorney?
No — nearest relative is defined separately by the Mental Health Act.
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This is general information about how Lasting Powers of Attorney work in England and Wales. It is not legal advice about your situation. What we do and do not do.
Published by Estate Advisory Group