Lasting Power of Attorney
What is a lasting power of attorney (LPA) and why do I need one?
It is a legal document allowing people appointed by you to make decisions on your behalf when you are no longer able to make those decisions. The person granting LPA is the donor and the recipient is the attorney. More than one attorney can be appointed, which is quite common in cases involving older people who have more than one adult child; they can then share the responsibility.
There are 2 types of LPA : 1) property and financial affairs, and 2) health and welfare. The first allows the attorney to make decisions relating to financial matters, e.g. paying bills and selling property, and the second relates to medical treatment and day to day care, including where a person lives.
The LPA has to be registered with the Office of the Public Guardian for it to come into effect. Of note, LPA for financial affairs can take effect as soon as it is registered, without the donor needing to lose mental capacity, if the donor requests this. The LPA for health and welfare is only valid when the donor loses mental capacity to make the relevant decisions. This can include making decisions about life - sustaining treatments, which needs to be specified on the application.
Setting up an LPA requires that the donor be at least 18 years old, and they must have mental capacity to make the decision to grant LPA. The attorney/s must also be over 18 and have the mental capacity to be LPA. Most of the time, attorneys are close family members, partners and friends, but can also be solicitors.
The forms have to be signed in a specific order; a detailed explanation can be found here.
LPA Certificate Provider
After the donor signs their forms, a certificate provider has to attest that the donor understands the nature of the LPA and that they made the decision of their own free will without coercion. The certificate provider must either be someone who has known the donor for at least 2 years, or be a professional such as a doctor or solicitor. A number of people are excluded from being certificate providers, the list being available here.
In people with cognitive impairment, a robust mental capacity assessment with a court compliant report is recommended prior to applying to appoint an LPA. This is particularly relevant to those with substantial estates.
Why should I make an LPA?
Many people don’t think about these matters until it is too late. Anyone of any age can lose their mental capacity to make decisions, which can be caused by illness or a head injury, and in older people, dementia. Creating an LPA allows you to have a say over who will make decisions on your behalf when you are not able to do so, ensuring that your wishes are respected. In the absence of LPA, loved ones have to apply to the Court of Protection for deputyship in order to access bank accounts etc. This process generally takes longer than the LPA process.
As regards LPA for health and welfare, all decisions relating to medical treatments and care have to be discussed with the attorney/s. It is important that if admitted to hospital, that the LPA for health and welfare be shown to medical staff. If you have an advance decision (directive) or living will which was made after the LPA for health and welfare, it takes precedence.
An LPA can be revoked whilst a person still has the mental capacity to do so, and the attorney can be changed.