What is a Lasting Power of Attorney (LPA)?
An LPA is a legal document that allows you (the Donor) to choose someone (the Attorney) that you trust to make decisions on your behalf about your property and finances or your health and welfare. The power for your Attorney to act on your before comes into effect in the future when you do not wish to make those decisions for yourself or you lack the capability to make such decisions.
You are able to appoint more than one person to act on your behalf and you may choose different people to make decisions relating to your welfare from those dealing with your finances.
An LPA has to be registered with the OPG to be used.
The Property and Affairs LPA
This document allows you to appoint one or more people to make decisions on your behalf regarding your property and financial affairs.
Your chosen Attorney is able to help you manage your finances and property whilst you still have capacity as well as when you lack capacity to make such decisions. This may be a result of a physical ailment whereby you may find it easier to give someone the power to carry out tasks, such as paying any bills, talking to the banks on the telephone or you might be out of the Country for long periods.
You can decide to give your Attorney the power to make decisions about any or all of your property and affairs. LPAs for Property and Financial affairs might include decisions about:
- Buying or selling property.
- Opening, closing or operating your bank accounts.
- Claiming, receiving and using all benefits, pensions, allowances and rebates that you are entitled to.
- Dealing with your tax affairs.
- Investing your savings.
- Paying your mortgage, rent and other household bills.
- Insuring, maintaining and repairing your property.
- Applying for any care funding, whether from the NHS or Local Authority that you may be entitled to.
This is an indicative list and not a full list of the actions your property and affairs Attorney can make on your behalf.
As this document can be used whilst you have capacity, you may wish to have conditions or restrictions on when this can be used by your Attorney. For example:
- Specify that your Attorney cannot act until you lack the capacity to make these decisions and how your capacity should be assessed.
- Add a condition that your Attorney must act or not act in a particular way, for example, specifying that the Attorney is not able to make gifts.
- Add a condition that your Attorney must keep accounts and submit them to a person you nominate.
You must consider whether to include any conditions or restrictions carefully as the future is unknown. It may be better to provide your Attorney with guidance, which is not binding to enable them to manage your finances in a particular way.
It is important that you take advise to determine whether any conditions or restrictions may be appropriate for you when making a LPA.
This type of LPA does not allow your Attorney to make decisions regarding your health and welfare.
Health and Welfare LPA
This is also known as a personal welfare LPA and allows you to plan ahead for a time when you are not able to make your own decisions in relation to your health and welfare. The personal welfare LPA allows you to choose the people you would want to be able to make these decisions on your behalf.
You can decide to give your Attorney the power to make decisions about any or all of your personal welfare matters, including healthcare matters. This could involve significant decisions, such as:
- Medical Matters, for example, giving or refusing consent to medical examinations or treatments.
- Arranging any medical, dental or optical treatments that you may require.
- Where you may live and who with, including moving into a residential care home.
- Who is able to visit you.
- Your day-to-day care, including what you eat and wear.
- Making any necessary complaints about the treatment you receive.
- Accessing your medical and personal records.
Again, this is an indicative list and not a full list of actions your personal welfare Attorney can make on your behalf.
This LPA can only be used if you lack capacity to make the required decision and if such a decision has not been made in advance by you, for example a DNR.
Your Attorney can also be given the power to consent to or refuse life sustaining treatment on your behalf.
This is treatment that a doctor considers necessary to sustain your life, for example a major operation or an organ transplant. It may also include more day-to-day treatment like antibiotics if you had developed pneumonia or required artificial hydration or nutrition. The most important factor is whether the treatment is necessary to keep you alive.
If it is your wish that your Attorney has the power to make life sustaining treatment decisions on your behalf this must be expressed within the LPA. This power will also allow your Attorney to withdraw any treatment. If you would prefer that your Attorney does not have this power then these decisions will be made by a health care professional instead (subject to any advance decision that you have in place).
This type of LPA does not allow your Attorney to make decisions about your property and affairs.
Who can make an LPA?
Any person over the age of 18 years, with capacity can make an LPA appointing one or more persons to make decisions on their behalf.
When should an LPA be registered?
An LPA should be registered with the Office of the Public Guardian (OPG) before it can be used by either you or your Attorney. The OPG is part of the Court of Protection.
An unregistered LPA will not give your Attorney any legal powers to make any decisions for you.
There is a fee to register the LPA with the OPG and this is currently £82.00 per document.
Please contact a member of our Wills, Probate and Capacity Team if you would like to discuss LPA further or make an appointment to prepare the same.