A Lasting Power of Attorney is a legal document which allows a person (called the donor) to appoint someone they know and trust to make decisions on their behalf should they become unable to do so in the future. This person is called an attorney. Attorneys must always act in the best interest of the donor.
There are 2 types of LPA:-
- Health and Welfare
- Property and Financial Affairs
Let’s look at what each LPA can do and what decisions it covers:
Health and Welfare
- Day to day decisions such as exercise and dietary requirements
- Medical care
- Life sustaining treatment
- Relocation into a care home or sheltered accommodation
A Health and Welfare LPA can only be used once it has been registered with the Office of Public Guardian (OPG) and when the donor loses mental capacity.
Property and Financial Affairs
- Managing bank accounts
- Paying bills
- Collecting income and benefits
- Making decisions with regards to the home
- Selling the home
- Managing investments
A Property and Financial Affairs LPA can be used as soon as it is registered with the OPG. The donor can restrict the rights the attorneys have under the “instructions” section of the LPA form.
Appointing Attorneys
Normally 1-4 attorneys can be appointed but it is important for the donor to ensure the attorneys are someone they know and trust to act in their best interests. Attorneys can act:-
- Jointly (attorneys must agree unanimously on every decision);
- Jointly and severally (attorneys can make decisions on their own or together); or
- Jointly for some and jointly and severally for other decisions (attorneys must agree unanimously on some decisions but can make others on their own).
Capacity
Before an LPA is made, it is imperative that the donor is over 18 and has mental capacity. This means they must understand:
- What an LPA is
- Who they want to make it
- Who they are appointing as their attorney
- How they have decided the attorneys; and
- That they understand what powers the attorney will have.
If the donor cannot decide for themself in relation to the matter due to an impairment of or disturbance in the functioning of their mind or brain, such as late set dementia, it is likely they will not have the required capacity.
The donor should be assessed on whether they have the ability to make a particular decision at a particular time. If unsure, a GP or independent mental capacity advocate can assess the donor’s capacity.
Registration
Once the LPA forms have been submitted to the OPG, they can take up to 20 weeks to be registered. There is a registration fee of £82 per document and is means tested so if the donor is on a low income or benefits, they may be eligible for remission of those fees.
Did you know?
- An LPA can only be made by someone who has mental capacity. If a person loses mental capacity and has no LPA in place, an application would need to be made to the Court of Protection who will appoint a deputy to act in the donor’s best interests (this is known as Deputyship Order). Anyone over the age of 18 can apply to the Court of Protection to be your Deputy to make financial decisions on the donor’s behalf. This can be a lengthy (normally 6-month timeframe) and very expensive process.
- The LPA ends when the donor dies
Capacity can be lost at any time and could be due to either an accident, a stroke or a deteriorating condition so please don’t wait until it’s too late.
For advice and help with making an LPA, please contact one of our members today.
