A Lasting Power of Attorney (LPA) is a legal document that allows someone you trust to make decisions on your behalf if you lose the ability to do so.
Whether you're planning for the future or supporting a loved one, understanding LPAs is essential.
Suzanne Porter from our Sheffield office explains more - including the types available, how to choose an attorney, and how to register your LPA in the UK.
A Lasting Power of Attorney is a document by which you choose someone to take certain decisions on your behalf. That person is called your “attorney”.
Lasting powers of attorney (LPA) was created under the Mental Capacity Act 2005, and came into effect in English law on 1 October 2007.
The LPA replaced the former enduring powers of attorney (EPA) which were narrower in scope.
Their purpose is to meet the needs of those who can see a time when they will not be able to look after their own personal, financial or business affairs.
The LPA allows them to make appropriate arrangements for family members or trusted friends to be authorised to make decisions on their behalf.
The LPA is created and registered with the Office of the Public Guardian (OPG), an executive agency of the Ministry of Justice of the United Kingdom.
Many people have seen a friend or relative become incapable of dealing with their own affairs as a result of mental incapacity.
When this happens, it is often difficult for the family to pay outstanding bills or deal with the person’s finances generally.
If this situation arises, then an application has to be made to the Court of Protection and the procedure can be both slow and costly.
This can be avoided by making a Lasting Power of Attorney.
There are two types of LPA – the Property and Financial Affairs LPA and the Health and Welfare LPA. You can make just one type of LPA, if you wish, or both of them.
Property and Financial Affairs LPA
This LPA gives your attorney power to look after your property and finances on your behalf. This would include the ability to deal with the following matters:
- Managing bank accounts and investments
- Selling your property
- Handling state benefits and pensions
- Completing your income tax return
- Making certain gifts
You can also include restrictions in the document which limit what the attorney can do. These need to be carefully phrased to avoid confusion in the future.
Health & Welfare LPA
This LPA allows your attorney to make decisions about your health and personal welfare. This would include the following types of decision:
- Where you are to live
- Arrangements for your day to day care
- Decisions relating to medical treatment
- Access to your personal information
- Making complaints about your care or treatment
You can limit the scope of the LPA if you don’t want your attorney to have such wide powers and give your attorney the power to refuse or consent to life-sustaining medical treatment on your behalf.
You can choose anyone you like to be your attorney, so long as they are over 18, not a bankrupt and not mentally incapacitated.
It is sensible to choose someone who is good at handling money to act under a Property and Financial Affairs LPA.
Choose someone you get on with, who can be relied upon to act in your best interests. Most people choose close relatives or friends to act as their attorney, alternatively you can appoint a solicitor to act as your attorney.
More than one attorney can be appointed, and you need to specify whether they are to act “jointly” or “jointly and severally”. Joint attorneys must always act together and cannot act separately. This means that if one of the attorneys dies, the LPA will be invalid. Attorneys who are appointed jointly and severally may act together but can also act separately if they wish, which provides more flexibility.
Every LPA has to contain a statement from at least one “certificate provider”.
The certificate provider will discuss the LPA with you, and then sign a certificate to say that in his or her opinion you understand what an LPA is and have not been pressured into making it.
Neither type of LPA can be used until it has been registered with the Court.
The Health & Welfare LPA cannot be used unless you lose your mental capacity. The Property and Financial Affairs LPA can be used straight away, even if you still have capacity. This can be useful if a physical disability makes it difficult for you to deal with financial matters or, if you would simply like your family to be able to look after matters for you.
Either you or your attorney can apply to the Court of Protection for registration of the LPA.
Until the LPA is registered, your attorney cannot act on your behalf. The registration process takes at least six weeks, so we advise registering the LPA sooner rather than later, in case it is needed in a hurry.
Once a Property and Financial Affairs LPA has been registered, your attorney has full power to administer your affairs (subject to any restrictions contained in the LPA).
Once a Health and Welfare LPA has been registered, your attorney only has power to take health and welfare decisions on your behalf if you are not able to make those decisions yourself.
In both cases, your attorney must follow the Mental Capacity Act 2005 Code of Practice whenever acting on your behalf.
This Code gives guidance as to how decisions should be made by and for people with impaired capacity and is essential reading for all attorneys. In particular, the Code states that your attorney should support you to make your own decisions if you are able to do so, rather than simply taking the decision for you. Any decisions that your attorney takes on your behalf must be in your best interests.
The Court of Protection has wide powers to supervise the actions of attorneys. That said, it will not usually exercise these powers unless problems are brought to its attention. It is therefore extremely
important that you only choose as your attorney somebody in whom you have the utmost confidence that they will act in your best interests.