Lasting Powers of Attorney
A power of attorney is a legal document in which a person (the donor) gives another person or people (the attorneys) authority to make certain decisions on his or her behalf. A regular power of attorney ceases if the donor loses capacity, a Lasting Power of Attorney does not. The format of the Lasting Power of Attorney is set out by law and it needs to be completed in a specific way.
The two types of Lasting Powers of Attorney (LPAs)
A property and financial affairs LPA allows your attorney authority to deal with your property and finances (subject to any restrictions you specify) e.g. operate your bank accounts, claim your benefits, pensions, and allowances, pay your bills and they can sell your property.
A health and welfare LPA allows your attorney to make health and welfare decisions on your behalf only when you lack mental capacity to do so yourself. This can include, if you wish, giving or refusing consent to life sustaining treatment. Other decisions can include giving or refusing consent to particular types of health care, deciding whether you should stay in your own home or choosing the right care home for you if you should not, and day-to-day issues, like your diet, dress, or daily routine.
You should think carefully about who you appoint as your attorneys. You should trust them completely. They should have the appropriate skills and character traits and they should be able to work together. If you appoint more than one attorney, you can appoint them to always act together or together or separately. You may even appoint them to act together for some decisions and together and separately for others. You can appoint replacement attorneys in case your first attorneys die or otherwise cannot act for you. You can restrict the decisions that your attorney can make and provide guidance to your attorneys in advance which they must consider when making decisions.
The Mental Capacity Act 2005 sets out that your attorneys must always act in your best interests. Capacity is decided on a decision by decision basis. It is not all or nothing. There is a presumption that you have capacity to make a decision unless you demonstrably do not and, even if you do not your previous wishes and those interested in your care must be considered by the attorneys.
When can the Attorney act?
The attorney will only be able to act when the LPA has been:
1 Signed by you and your attorneys in front of witnesses;
2 Certified by a relevant person that you understand the nature and scope of the LPA and have not been unduly pressured into making the power and there has been no fraud and no reason why you cannot make the power;
3 Registered with the Office of Public Guardian. The property and financial affairs LPA can be used both when you have capacity to act, as well as if you lack mental capacity to make a financial decision, subject to any restriction you impose. The health and welfare power can only be used if you lack mental capacity to make a welfare or medical decision.
Existing Enduring Powers of Attorney (‘EPA’)
Any EPA validly made before 1st October 2007, can still be used but only in respect of your property and financial affairs. If you wish to give authority over your health or welfare you will need to make a health and welfare LPA.
What happens if you have not made a LPA or EPA?
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order e.g. appointing a deputy to make decisions on your behalf. This costly and time consuming process can be stressful for your loved ones and your assets may be inaccessible for a number of months until the court order is issued. You may not end up with the deputy you would have chosen as it will be the court deciding and not you. Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes, you can give your chosen representatives authority to make those decisions on your behalf by making a health and welfare LPA.
Disclaimer: This leaflet is designed to provide you with a brief understanding of LPAs. It is not to be treated as a substitute for getting full and specific advice from a specialist lawyer