Lasting Power of Attorney (LPA)

What is a Lasting Power of Attorney?

Have you considered what would happen to your financial affairs if you had an accident or became seriously ill, or who would be able to make decisions on your health care if you lost mental capacity?

This could happen at any stage of your life. Everyday tasks involving managing your accounts, paying your bills and maintaining your property would become very difficult, if not impossible. It is therefore worth making a Lasting Power of Attorney (LPA) so that you can be sure that the person or people you trust are able to manage your affairs and make decisions on your behalf.

A Lasting Power of Attorney (LPA) is a legal document which enables you to plan ahead and set out in advance what you would like to happen should you become incapable of managing your affairs in the future.

In the LPA, you appoint one or more ‘attorneys’ who will be able to make decisions on your behalf. An attorney is anyone you choose and trust. He or she must consider your best interests when making a decision on your behalf.

There are two types of LPA:

A property and financial affairs LPA

This gives your attorney the authority to deal with your property and finances, as you specify

A health and welfare LPA

This allows your attorney to make health and care decisions on your behalf, only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment

The importance of taking action now

You can only make an LPA whilst you have capacity to understand the nature and scope of the LPA, and you must choose a person to certify within the LPA document that you have the capacity to make the LPA.

It is also important to discuss all these matters with family and friends, particularly those who you choose to appoint as your attorneys, whilst you are able to so that your attorneys are well aware of your wishes in the event that you do lose capacity.

Choosing your attorneys

A power of attorney is an important document and you should take care who you appoint as they should be trustworthy and have appropriate skills to make the proposed decisions. In simple terms, you should consider them to be good decision makers.If you wish to appoint more than one attorney, you must set out how you would like them to work together.

You may also choose to appoint a replacement to your original attorney, in case he or she dies or cannot otherwise act for you.

When can the attorney act?

The attorney will only be able to act when:

The LPA has been signed by you and your attorney(s) in strict date order.
Certified by an independent person to confirm that you understand the nature and scope of the LPA and have not been unduly pressured into making the document.
Has been officially 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, although you may wish to restrict this to only when you have lost mental capacity. The health and welfare LPA can only be used if you lack mental capacity to make a welfare or medical decisions for yourself.

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 decisions, you will need to make a health and welfare LPA.

What happens if you have not made a LPA or EPA?

If you lose capacity and have not made an LPA (or have not made an EPA), then it may become necessary for a relative or friend to apply to the Court of Protection, where the Court will decide whether or not to appoint him or her to make decisions on your behalf. Although the Court endeavours to appoint somebody who would act in your best interests, you could potentially have somebody managing your affairs who you would not have chosen had you had capacity.

It could even be someone you don't know and not necessarily a family member. Furthermore, an application to the Court is very time consuming and costly. It may be months before somebody is able to access your finances. This can be a very stressful time for your friends/relatives who may end up spending their own money trying to pay your bills whilst waiting for a Court Order.

To avoid this, we suggest that you put in place an LPA as soon as you can.