A Lasting Power of Attorney (LPA) is a legal document which enables a person, whilst they have mental capacity, to appoint a person or people to make decisions for them at a time in the future when they are either no longer able or lack the mental capacity to do so themselves.
Obviously the person making such a decision will need to choose someone (or more than one person) they trust, and at the same time that person (or people) will need to decide whether they wish to take on this responsibility should it become necessary in the future.
What are the different types of LPA ?
There are two types of LPA: a Property and Financial Affairs LPA and a Health and Welfare LPA.
A person can choose to make an LPA that covers just Property and Financial Affairs or Health and Welfare, or both.
Property and Financial Affairs LPA
A Property and Financial Affairs LPA enables the appointed person (or people), known as the “Attorney(s)”, to make decisions about the property and financial affairs of the person who made it.
The types of decisions that could be covered by a property and financial affairs LPA include:
- paying bills (including any existing mortgage on the property where they live)
- investing money
- arranging repairs to the property where they live
- selling property.
The person making the LPA can limit these powers, so for example they may not want to give the Attorney(s) the power to sell their house, or they can give a general power without restrictions.
The property and financial affairs LPA cannot be used until it is registered at the Office of the Public Guardian. This can be done at any time – it can be registered by the person who made it immediately, or the Attorney(s) can register it if the person has lost capacity to make their own decisions.
Having the LPA registered immediately does not mean that the person who made it has lost their mental capacity. Some people, for example, do not like dealing with money and so even if they can still manage they would prefer their Attorney to take over the management of their finances sooner rather than later.
Health and Welfare LPA
A Health and Welfare LPA enables the appointed person (or people), known as the “Attorney(s)”, to make decisions about the health and personal welfare of the person who made it.
The types of decisions that could be covered by a Health and Welfare LPA include:
- the person’s daily routine (e.g. what to eat and what to wear)
- giving consent to medical treatment
- deciding where they should live (e.g. moving into a care home).
Like a property and financial affairs LPA, the person making the LPA can limit these powers, or they can give a general power without restrictions.
Like a property and financial affairs LPA, a health and welfare LPA can only be used once it has been registered at the Office of the Public Guardian.
However, there is a big difference in that the health and welfare LPA can only be used if the person who made it has lost mental capacity to make a particular decision about their care and treatment. But it is still advisable to register a health and welfare LPA as soon as it is made so that if the time comes when you need to use it, there will not be a delay. This might be important if a treatment decision needs to be made.
Attorney(s) can refuse or consent to medical treatment on the person’s behalf as long as the LPA does not restrict their authority to make those decisions.
But if a decision has to be made about life-sustaining treatment, the attorney can only refuse that treatment if it is stated in the health and welfare LPA that the person who made it wants them to be able to make that kind of decision.
How do you set up a Lasting Power of Attorney ?
To set up an LPA certain forms need to be completed. There are separate forms to complete for making a Property and Financial Affairs LPA and for a Health and Welfare LPA.
For information on the forms to complete, including the option of completing them online, click here.
For advice on how to complete the forms you can contact the Office of the Public Guardian, who are responsible for the registration of LPAs.
Can a Lasting Power of Attorney document be made by a person who lacks mental capacity ?
The answer is No.
A person who makes a Lasting Power of Attorney must be in full charge of their mental faculties and able to make and communicate their own decisions.
If it is the case that a person does not have mental capacity then a Lasting Power of Attorney cannot be made. In these circumstances the carer concerned will need to apply to the Court of Protection to become a “Deputy”, and more information on this can be found here.
Can an existing Lasting Power of Attorney be subsequently amended if the person who made it no longer has mental capacity ?
The answer is No.
If a change is required, for example a different or additional family member wishing to become involved in managing the affairs of the person concerned, then the matter needs to go before the Court of Protection. It will be for the Court of Protection to decide whether a Deputy is needed and if so who should be the “Deputy” (or “Deputies”). In this situation the existing Lasting Power of Atttorney documents would become null and void if a Deputy were to be appointed.
I already have an old style Enduring Power of Attorney. Do I need to update it ?
Lasting Power of Attorney replaced Enduring Power of Attorney (EPA) on 1 October 2007. But an existing EPA remains valid as long as it was signed before 1 October 2007 and while the person was still able to make decisions for themselves. If the person who made the EPA starts to lose their ability to make reasoned decisions then the EPA must be registered with the Office of the Public Guardian.
Also, EPAs only deal with financial matters and not health and welfare. Therefore, the person who made the EPA may want to consider making a separate Health and Welfare LPA.
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