A Lasting Power of Attorney (LPA) is a legal document that allows you, the ‘donor’, to appoint trusted people, known as your ‘attorneys’, to make financial or health and care decisions on your behalf.
Lasting Power of Attorney guidance: the financial LPA
A financial LPA can be used while you still have the mental capacity to make your own decisions, while a health and care LPA can only be used if you lose the ability to make decisions for yourself.
A financial LPA will allow your attorney(s) to act on your behalf, either if you are no longer able to, or if you no longer wish to, make your own decisions about your property and finances.
Financial decisions might relate to:
- opening, closing and using your bank and building society accounts
- claiming, receiving and using your benefits and pensions
- paying your household and any other bills
- making or selling any investments
- buying or selling your property.
Lasting Power of Attorney guidance: the health and care LPA
A health and care LPA will allow your attorney(s) to act on your behalf where you are no longer able to make your own decisions by reason of illness, disability, accident or otherwise.
You don’t have to currently have complex health care issues to make a Lasting Power of Attorney, rather it is a way of planning for the future in the event that you lose the mental ability to make these decisions for yourself at any point.
Health and care decisions might be about:
- day-to-day matters such as your diet, dress or daily routine
- where you should live, for example, staying in your own home with assistance from
- Social Services or moving into residential care
- what medical care you should receive, including giving or refusing consent to life-sustaining treatment.
Needless to say, the issue of life-sustaining treatment is particularly significant. You will, therefore, need to elect on the prescribed form whether you give your attorney(s), or your doctors, the decision about accepting or refusing medical treatment to keep you alive in circumstances where you are unable to make that decision for yourself.
Lasting Power of Attorney guidance: how to apply for an LPA
As previously indicated, there are two types of Lasting Power of Attorney, one for finances and one for health and care. You will need to complete the appropriate form depending on the type of LPA you are looking to create, or both forms where you want to appoint attorneys to deal with all such matters.
In either case, you can appoint a single attorney, or more than one attorney, although where you appoint more than one you will need to decide whether they can act jointly, or whether some decisions can be made by a single attorney acting independently.
You should only appoint someone that you trust will act in your best interests. This persons, or persons, will have access to your personal and financial details, and potentially may need to make life-changing decisions about what care you receive and where you live.
Any attorney you decide to appoint will need to be aged 18 or over and have the mental capacity to make decisions on your behalf. You must also be aged over 18 and, at the time of creating the LPA, have the capacity to make your own decisions at that stage.
In addition to any attorney that you appoint, you may want to notify other people of your intention to register an LPA. The relevant application forms refer to these as “people to notify”. This is a way of safeguarding you, as a potential donor, by giving others the opportunity to raise any objections to the LPA prior to it being registered.
As such, you should again only choose people who care about your best interests and would be willing to speak up if they had any concerns about your decision to create a Lasting Power of Attorney, who you have chosen to act as your attorney(s) or any other relevant matters.
Lasting Power of Attorney guidance: how to register an LPA
Having completed the prescribed form(s), you will need to register an LPA with the Office of the Public Guardian. You will also need to send a separate form to those people you chose to be notified so that any potential objections can be raised by them within the appropriate timeframe.
A Lasting Power of Attorney will need to be registered before it can be used. This is a process that can take several weeks, so you may need to plan ahead.
The fee to register an LPA is £82, although this may be reduced or waived if you are on a low income or in receipt of benefits. If you complete both prescribed forms, to create two LPAs, you will need to pay £164.
Lasting Power of Attorney guidance: the issue of mental capacity
A health and care LPA will only come into force if the donor loses the mental capacity to make their own decisions. There are various kinds of illness that could prevent you from temporarily, or even permanently, making decisions for yourself. These can include:
- A progressive illness or disease such as dementia
- mental health problems
- brain injury
- alcohol or drug misuse
- the side-effects of medical treatment.
To have mental capacity you must understand and be able to communicate the decisions you need to make at the time you are making them. You must also be able to understand why you need to make those decisions and their likely consequences.
This may, at first blush, seem fairly clear-cut. However, in some cases, while an individual may be able to make decisions about what they would like to eat for breakfast, they may be wholly unable to make decisions about where it is best for them to live. Moreover, an individual’s decision-making ability can change on a daily basis.
It can be extremely difficult for attorneys to decide when a health and care LPA has come into legal effect, for example, the mere fact that a donor needs more time to understand or communicate decisions doesn’t mean s/he lacks mental capacity.
This can also seem like a daunting prospect for a prospective donor, not least if you are at imminent risk of losing your mental capacity through a progressive illness. In these instances, it may be wise to set out your preferences, or clear instructions, within your LPA, to ensure that your attorney(s) have clear guidance as to how you would like certain decisions to be made.
Please note that to take legal effect, you must make and sign an LPA while you are still capable of making decisions for yourself.
Lasting Power of Attorney guidance: the benefits of seeking legal advice
When creating a Lasting Power of Attorney, it is always best to seek expert legal advice to avoid any mistakes being made and thereby potentially voiding the whole application.
Moreover, by creating an LPA you are giving another person, or persons, the right to make important decisions on your behalf. You must, therefore, be confident that you are appointing people that you trust.
By seeking professional help, you can be given comprehensive Lasting Power of Attorney guidance, helping you to make the right decisions to safeguard your future.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
