Lasting Power of Attorney is a legal document that allows someone to choose people they want to make decisions on their behalf, including when they lack mental capacity to make the decision themselves. The person making the Lasting Power of Attorney is legally referred to as the 'Donor'. The people chosen to make decisions on the Donor's behalf are the 'Attorneys'.
The document is 'completed' while the person still has capacity and cannot be used before it has been registered with the Office of the Public Guardian (OPG).
The Lasting Power of Attorney is generally referred to as an LPA and there are two types of LPA:
- Property & Financial Affairs (allowing an Attorney to make decisions about paying bills, dealing with the bank, collecting benefits, selling your house, etc).
- This covers people with assets in England and Wales. An LPA made here may not be usable in any other country (including Scotland and Northern Ireland). If you have property abroad, or you move abroad, you should obtain legal advice.
- It can be used immediately after registration, with permission, or a Donor may choose to include a restriction that it is not to be used until he/she has lost capacity.
- Health & Welfare (the power to make decisions about things like your daily routine e.g. washing, dressing, eating, medical care, moving into a care home and life-sustaining treatment).
- It can only be used when you are unable to make your own decisions.
Who Can Make a Lasting Power of Attorney?
Anyone aged 18 or over can make an LPA. You must make it as an individual – two or more people cannot make a joint LPA. You can have help in writing it, but another person cannot make an LPA for you. Anyone making an LPA needs to have mental capacity when they make it.
The Benefits of Making a Lasting Power of Attorney
An LPA allows you to plan in advance: -
- the decisions you want to be made on your behalf if/ when you lose capacity to make them yourself;
- the people you want to make these decisions;
- how you want the people to make these decisions.
Having an LPA is a safe way of maintaining control over decisions made for you because:
- it has to be registered with the OPG before it can be used (if someone else tries to register it you and your Attorney(s) will be able to make an objection);
- you choose someone to provide a 'certificate' confirming that you understand the significance and purpose of it;
- you can choose 'people to be told' about your LPA when it is registered (so that they have an opportunity to raise concerns);
- your signature, and the signatures of your chosen Attorneys, must be witnessed.
Your Attorney(s) must follow the Code of Practice of the Mental Capacity Act 2005 – if they don't always act in your best interests the OPG can step in, and your Attorney(s) may be held accountable.
Who Will Be My Attorney?
You should choose one or two people you trust to be responsible and who will ensure that your wishes and needs are met. It may be a family member, friend, neighbour or alternatively your Solicitor might agree to act.
What If I Later Change My Mind?
All the time you are able to make and express your own decisions and wishes you can continue to conduct your own affairs and there is no question of anyone being able to act without your say so or without your best interests in mind. You can always take away (revoke) the power you have given to your Attorney(s) if you are unhappy, as long as you still have capacity to do so.
Other people, such as family members or Solicitors, can also protect your interests by applying to revoke the LPA if they feel the Attorney(s) is/are not acting in your best interests.
Court of Protection
If a person should become mentally incapable and there is no existing Power of Attorney, a Court of Protection application will be required to appoint a Deputy (or Deputies) to manage that person's affairs – Property & Affairs and/or Personal Welfare.
This process is more costly, lengthy and often more protracted than the LPA process.
Once approved, Deputies are supervised by the (OPG) and may be required to write a report each year explaining the decisions they have made, detailing the reasons for their decisions and why they were in the best interests of the person they are Deputy for, provide details of how they have managed the other person's money and must keep copies of bank statements, receipts, letters and emails about their activities as a Deputy.
Deputies can claim expenses associated with their duties e.g. travel to visit the person, phone calls, postage etc., however they cannot claim for the time they spend carrying out their duties unless they are a professional Deputy.
We can offer further advice and assistance in connection with Court of Protection applications.