Lasting Power of Attorney
A Lasting Power of Attorney (“LPA”) is a type of power of attorney which replaced Enduring Powers of Attorney (“EPA”) in 2007. Please note that existing EPAs are not affected and remain valid.
An LPA allows anyone to delegate to a person of their choice the power to make decisions about personal matters, such as healthcare, and also finance and property.
There are two kinds of LPA – the Health and Welfare LPA and the Property and Affairs LPA.
The person who makes the LPA is called “the Donor” and the person to whom power is delegated is called “the Attorney”.
The Donor must have mental capacity to make the LPA, but an LPA can be used by the Attorney even if the Donor loses mental capacity.
An LPA may be revoked at any time if you change your mind, provided that the Office of the Public Guardian is informed if it has been registered. It cannot be revoked if mental capacity has been lost.
Health and Welfare LPA
The old EPA could only be used to deal with finance and property, so the power given by a Health and Welfare LPA is relatively new. You can delegate to a person of your choice power to decide, for instance, where you should live and to decide whether to give or refuse consent to medical treatment. You may specify restrictions on the power, and you can set out your own views and wishes in your LPA to give guidance on how it should be exercised. Your Attorney is obliged by law to act in your best interests and to abide by a Code of Practice. This type of LPA is only used where the Donor cannot make decisions for his or herself due to lack of capacity.
Property and Affairs LPA
You can delegate power to deal with your property and affairs so that your Attorney can do anything you would have been able to do yourself. Your Attorney can operate bank accounts, invest or withdraw your money, claim benefits and deal with your tax returns. Your Attorney can also sell your house, and make limited gifts from your money.
You can specify restrictions on the power in your LPA, including a provision that it cannot be used until you have lost capacity.
Attorneys do not have power to make a Will for the Donor, or indeed even to see an existing Will, unless specific power to do this is given in the LPA.
Again, there is a Code of Practice in place which must be observed.
Unlike EPAs which took effect when signed, LPAs must be registered with the Office of Public Guardian before they can be operated.
When operating an LPA the Attorney must have regard to the principle that the Donor should make decisions personally whenever possible. The principles governing this are set out in the Mental Capacity Act 2005.
The cost of registration is currently £110 per LPA.
The Office of Public Guardian keeps a register and is responsible for reviewing the acts of Attorneys. The object of this is to prevent abuse of LPAs. Either the Donor or Attorney can register the LPA.
After registration a Property and Affairs LPA can be used immediately whether or not the Donor has capacity.
A Health and Welfare LPA can only be used if the Donor lacks capacity to make the decision.
Once on the register, anyone can get basic information relating to the LPA on payment of a fee.
How to make an LPA
This is an important document and cannot be changed if you lose capacity, so it is vital that proper advice is taken before making either form of LPA.
As well as choosing an Attorney or Attorneys, and specifying their authority, a “certificate provider” must sign the LPA to confirm you understand the purpose and scope of the LPA, are not under duress or pressure to make it, and that there is no other reason that should prevent the LPA being completed.
A certificate provider must either have known you personally for at least 2 years or have professional expertise to give a certificate. Examples of the latter might be a doctor, solicitor or social worker. The certificate provider cannot be a member of your family or the Attorney’s family. There are other excluded classes of people who cannot act as a certificate provider.
You may also specify any individuals to be given notice of registration of the LPA. If you decide not to name anyone you must have 2 certificate providers.
LPAs must be properly completed. When you sign, your signature must be witnessed by an independent party. A spouse or civil partner may not act as your witness. The certificate provider can act a witness.
You can appoint anyone over 18, including your spouse, civil partner or partner, though a bankrupt cannot be an Attorney for finance and property. Clearly you must be able to trust your Attorney as you are delegating important powers to them.
You can appoint more than one Attorney. You can specify that they must act together or act independently. You can specify that certain important decisions should be joint and others made by one independently.
Obviously, for convenience and practicality, it might be best to appoint an Attorney who lives near you and can act independently, rather than more than one in different areas as this might hinder operation of the LPA.
You can name a replacement Attorney should one be unable to act for you.
Alternatives to making an LPA
- You could simply make an ordinary Power of Attorney to deal with your property and affairs. This would cease to have effect if you lost mental capacity and you would risk having the Court of Protection appoint a deputy to deal with your affairs.
- If you are concerned about medical decisions you could make an Advance Directive or a Living Will setting out your wishes, but clearly this is limited.
- You could decide to take no action. If you lost capacity in the future someone could apply to the Court of Protection to be appointed as your deputy to act on your behalf. You would have no say over who this person might be.