What is a lasting Power of Attorney?
A Lasting Power Of Attorney (LPA) is a legal document that allows someone (the Donor) to nominate another person (the Attorney) to make decisions on their behalf when they lack the capacity to do so for themselves.
It is completed in advance of the Donor losing capacity – mental or otherwise and is then kept until needed. During this period it cannot be used - and the person continues to make decisions themselves. Should the Donor lose capacity, the LPA is registered with the Office of the Public Guardian, and from this point on it can be used. This means that the nominated person will then be able to make decisions on the Donor’s behalf.
Two types of LPA
1. Health and Welfare — Health and Welfare allows decisions on treatment, care, medication, where you live, etc. A registered health and welfare LPA lets your Attorney(s) make decisions about:
- Giving or refusing consent to particular types of health care, including medical treatment decisions;
- Day-to-day issues like your diet, dress, or daily routine;
- Whether you stay in your own home, perhaps with support from social services, or move into residential housing; and
- Should you need to move, choosing the right care home for you.
2. Property and Financial Affairs — Property and Financial Affairs allows an Attorney to make decisions about paying bills, dealing with the bank, collecting benefits, selling your house, etc. A registered property and financial affairs LPA lets your attorneys make decisions about:
- Buying and selling your property.
- Opening, closing, and operating bank/ building society accounts.
- Claiming receiving and using your benefits, pensions, and allowances.
The role of the Office of the Public Guardian
The Office of the Public Guardian (OPG) is part of the Ministry of Justice. The OPG manages the registration process of LPAs and they maintain a register of them all. The OPG also deals with any complaints and concerns raised if, for example, someone feels a person has been pressurised into making an LPA.
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 writing it, but another person cannot ‘make’ an LPA for you. Anyone making an LPA needs to have mental capacity when they make it.
From a legal perspective an LPA covers people and assets in England and Wales. An LPA made here may not be usable in any other country (including Scotland and Northern Ireland).
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 or when you lose capacity to make them yourself.
- Nominate the person or persons you want to make these decisions for you.
- Stipulate how you want the person or persons 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 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 Attorney(s) must be witnessed.
- From a legal perspective, 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.
Deciding if you want to make and register a lasting power of attorney
If you lose mental capacity at some point and for whatever reason you haven’t completed an LPA, the Court of Protection will appoint one or more people to make your decisions for you. These people are called Deputies and act in the same way as Attorney(s), however, you will not choose who these people will be, the Court does that.
By choosing, within an LPA, who you want to make decisions on your behalf, you are put in control of your future and the decisions that will eventually be made for you.
If you have any questions, please do not hesitate to contact us for further information.
Will Writing Service by Helm Godfrey
T 020 7614 1071