Lasting Powers of Attorney
Lasting Power of Attorney (LPA)
Many people are concerned about what will happen to them in later life in the event that they cannot make decisions for themselves through loss of mental capacity. With a growing elderly population, people are much more aware of the possible effects of Alzheimer's, dementia, strokes and other conditions which can cause loss of mental capacity.
Lasting Powers of Attorney (LPA) enable you to have a say in your future. Whether it is the type of care you receive, what type of medical treatment you do or do not want, or who you want to look after your property and finances. An LPA can even be set up so that it only activates once you are medically diagnosed as having lost mental capacity.
A Lasting Power of Attorney enables the person making it (the donor) to give someone else (the attorney) the legal right to deal with his or her affairs.
By setting up an LPA in advance you are able to choose someone you trust to deal with your affairs. If you do not have an LPA, and later lose mental capacity, then someone will need to apply to the Court of Protection to become entitled to manage your affairs and this may not be the person you would have chosen yourself.
Two types of LPA are available. A Property and Affairs LPA, which gives the attorney the authority to deal with the donor's finances and property, and a Personal Welfare LPA which allows them to make decisions relating to the donor's healthcare, welfare and in some cases end of life treatment.
The person making the LPA, the donor, will often appoint a family member or friend to be responsible for making decisions for them in the future. It is possible to appoint one person to act, or to name more than one person and specify different areas that each can make decisions about. It is also possible to specify that decisions should be made jointly by both attorneys.
Property and Affairs Lasting Power of Attorney
A Property and Affairs LPA can be set up to come into force as soon as it is registered, or the donor can restrict it so that it can only be used if they lack mental capacity.
It gives the attorney the authority to deal with the following areas, unless restricted by the donor at the time of taking out the LPA:
- Dealing with bank accounts and other finances
- Claiming, receiving and using all benefits (on the donor's behalf)
- Dealing with the donor's taxes
- Receiving income or inheritance for the donor
- Buying and selling property
- Making limited gifts on the donor's behalf
Restrictions exist in many of these areas aimed at protecting the donor. For instance, gifts are limited to customary gifts the donor may have made (eg. birthday gifts to relatives) and must not be unreasonable in size given the donor's financial circumstances.
Importantly, an attorney is under obligation only to act in the donor's interests at all times, and various safeguards exist to ensure this.
Personal Welfare Lasting Power of Attorney
A Personal Welfare LPA can only be used once it has been registered with the Office of the Public Guardian and also, importantly, after the donor has lost mental capacity.
It offers broad scope for making decisions in a number of areas. These include:
- Where the donor should live and who they should live with
- The donor's day to day care, including diet and dress
- Consenting to or refusing medical examination and treatment on the donor's behalf
- Assessments for and provisions of community care services
- The donor's personal correspondence and papers
- Complaints about the donor's care or treatment
LPAs are tailor made to the individual. At the time of making the LPA the donor can modify the scope of the power. For example, the donor may not wish their attorney to have power to decide who the donor has contact with. This can be stated in the LPA at the outset so that it is clear which decisions the attorney is allowed to make.
An attorney can only consent to or refuse life-sustaining or life-prolonging treatment on behalf of the donor if expressly authorised to do so by the LPA.
The attorney is duty bound to act in the best interests of the donor at all times, and in cases of end of life treatment should consult with carers and family members who have an interest in the donor's welfare. Of course, no attorney can be given power to demand that treatment be given if the medical staff in charge of the donor's care do not believe it to be necessary.
I already have an Enduring Power of Attorney
Since the introduction of Lasting Powers of Attorney in October 2007, any Enduring Powers of Attorney completed after that date are invalid. However, Enduring Powers of Attorney made before October 2007 remain effective and can still be registered.
You may nevertheless still wish to have a new Lasting Power of Attorney created to reflect any change in circumstances, or for the added safeguards and flexibility which the Lasting Power of Attorneys offer.
Lasting Powers of Attorney can be complex and specialist legal advice should be sought.
Contact us for further information or to arrange a consultation.