Lasting Power of Attorney (LPA)
A Lasting Power of Attorney allows you to appoint trusted individuals to act on your behalf if you are ever unable to make your own decisions due to an accident or illness.
There are two types available to you, Property and Financial LPAs and Health and Welfare LPAs – you can choose to make one type or both.
What is a Power of Attorney?
A Power of Attorney is a legal document where one person (the donor) gives another person the right to make decisions on their behalf (the attorney).
It can be a helpful tool as we get older, especially if we become unable to cope with important decisions and processes in the future.
You need to give a Power of Attorney over your affairs while you still have the ability to weigh up information and make decisions for yourself. This is called ‘mental capacity.’
The most common form is Lasting Power of Attorney, which is an ongoing arrangement that ends when the donor dies.
Different types of Power of Attorney
There are three main types of Power of Attorney:
Ordinary Power of Attorney: Covers decisions about your financial affairs while the donor has mental capacity. It is useful when it becomes temporarily difficult for the donor to manage their affairs. Perhaps they are unwell, recovering from an injury or medical treatment or travelling abroad. The donor can limit the attorney’s powers and can still make decisions for themselves if they want to.
Lasting Power of Attorney (LPA): Transfers decisions to the appointed attorneys about financial affairs and/or health and care. It must be made while the donor is well and is used once they have lost the mental capacity to make decisions for themselves.
Enduring Power of Attorney (EPA): An EPA authorises attorneys to make decisions about property and financial affairs.The EPA was replaced with the Property and Financial Lasting Power of Attorney (LPA) in October 2007. You can no longer make an EPA, but if one was made correctly and signed before 1 October 2007 it may still be used.
How does a Power of Attorney relate to mental capacity?
The Mental Capacity Act 2005 (MCA) is a set of laws that have been in force since 2007 in England and Wales. It was created with the purpose of protecting vulnerable people who lack the mental capacity to make their own decisions.
The MCA introduced the new form of Lasting Power of Attorney which allows people over the age of 18 to formally appoint one or more people to look after their health and welfare and/or financial decisions should they lose mental capacity to make their own decisions, replacing Enduring Powers of Attorney.
A lack of mental capacity is usually due to an impairment of the mind or brain, either as a result of an illness or external factors such as alcohol or drug use that impacts on their ability to make a specific decision when they need to.
Examples of when someone might lack capacity are:
- an illness, such as dementia
- a serious brain injury
- severe learning disabilities
- confusion, drowsiness or unconsciousness because of an illness or the treatment for it
- a mental health illness
- substance misuse
You can both lose mental capacity and regain it depending on the cause or a lack of mental capacity may be permanent. Sometimes a person may lack capacity to make some decisions but still have the capacity to make other decisions.
The Court of Protection was established under the MCA to protect individuals who lack capacity and to make rulings on difficult decisions about their property, finances and welfare.
Types of Lasting Power of Attorney
There are two kinds of Lasting Power of Attorney (LPA): A Property & Financial LPA and a Health & Welfare LPA.
Property & Financial LPA:
Gives your attorney the power to make decisions about things like:
- managing a bank or building society account
- paying bills
- collecting benefits and pensions
- selling your home
You can decide whether the LPA can be used as soon as it’s registered or only once you have lost mental capacity and you are unable to make your own decisions.
Health & Welfare LPA:
Gives your attorney the ability to look after and plan:
- your day to day routine, for example, washing, dressing, eating
- medical care
- moving into a care home
- life-sustaining treatment
This LPA can only be used once you have lost mental capacity and you are unable to make your own decisions.
How to arrange an LPA
You can make a lasting power of attorney online or using paper forms. Whichever way you prepare the documents, you will need to get people to sign the forms, including the attorneys and witnesses.
A fee applies, although it reduces if you receive certain benefits.
You will also need a signature from a ‘certificate provider’ who confirms you’re making the LPA by choice and that you understand what you are doing.
Many people seek advice from a solicitor or legal advisor on the forms, as any mistakes in the process can mean the LPA is rejected. There are some differences to the process in Scotland and Northern Ireland.
You must register your LPA with the Office of the Public Guardian. If not, your attorney will not be able to make decisions for you. The Office of the Public Guardian is an executive agency, sponsored by the Ministry of Justice and helps people in England and Wales to stay in control of decisions about their health and finance and make important decisions for others who cannot decide for themselves.
If you or a family member are in a position where you need to consider an LPA, we can support you through the process. We will explore your specific circumstances and how an LPA would work in practice, how to choose attorneys and what the process involves.
Contact our team today for an initial chat about how we can help.
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