Lasting Power of Attorney: Jargon Busting!

A Lasting Power of Attorney (LPA) is a very important document that allows you to appoint people who you personally know and trust, or professionals, to make decisions on your behalf and look after your best interests should you lose capacity.

There are two main types of LPA. A Property & Financial Affairs LPA covers your financial decisions, whereas a Health & Welfare LPA allows someone to make decisions about your personal health and care. You can have both types or either. For more information on LPAs take a look at our article here.

An LPA is a legal form but completing one doesn’t have to be a daunting task. Let’s clear up some of the legal jargon used on the forms!

1. Donor

You! This is the person who is making the LPA and appointing people to make decisions on their behalf in the event of their incapacity. They are the ‘donor’ of the power.

2. Attorney

The attorneys are the people who the donor appoints to make decisions on their behalf. You can have a single attorney or multiple attorneys acting together. It is also possible to appoint professional attorneys, but make sure you talk to them about their fees first.

The attorneys you choose must be over 18 at the time the LPA is signed and must have mental capacity. If you are making a Property & Financial Affairs LPA your attorney cannot be bankrupt or subject to a debt relief order, but this doesn’t matter for Health & Welfare.

As the donor you get to decide how the attorneys act if you have appointed multiple people. This could be jointly so they must make all decisions together, or ‘jointly and severally’ so they can make decisions together or individual attorneys can make decisions alone. There is also a third option that combines these two. This allows you to state that some decisions have to be made jointly, and everything else jointly and severally.

3. Certificate Provider

This is the person who signs your LPA to confirm that you have capacity and you aren’t subject to any fraud or being pressured into making it. There are two categories of certificate provider; personal and profession.

A certificate provider acting in a person capacity must be someone who has known you for at least two years. This cannot be a member of your family, so good choices may be a friend or neighbour.

A professional does not need to have known you for two years, but they must have relevant professional skills. This could be your GP, a solicitor, or your Estate Planner.

There is quite a long list of people who can’t act as your certificate provider. Your Estate Planner will be able to give you advice on who is appropriate.

4. People to notify

These are the people you name on your LPA because you want them to be informed when the LPA is sent off to the Office of the Public Guardian (OPG) to be registered. They will each receive a form letting them know about the pending registration, and they will then have 3 weeks to raise any concerns about this with the OPG.

The form they receive sets out the grounds they could object to the registration on. For example, they believe you revoked your LPA while you still had capacity, or they believe the LPA was not valid because you didn’t have capacity to make it.

You don’t have to name any people to notify on the form, but it’s a good safeguard if you are choosing not to register your LPA straight away!

5. Life-sustaining treatment

This is only relevant to the Health & Welfare LPA. Life-sustaining treatment is any treatment that the person providing your medical care believes is necessary to sustain your life. It’s up to your doctor to decide whether treatment is life-sustaining.

What jumps to mind when asked about life-sustaining treatment? If you immediately thought of emergency surgery or ventilation you aren’t alone, and you wouldn’t be wrong. But did you know that what treatment is ‘life-sustaining’ depends entirely on your circumstances? What may not be life-sustaining for one person may be life-sustaining for you. A common example is a simple prescription of antibiotics.

In your Health & Welfare LPA you must state whether your attorneys can or cannot make decisions about life-sustaining treatment. This is a big decision, and if you want to grant your attorneys this power it’s a good idea to talk to them about any treatment preferences you might have.

Siobhan Rattigan-Smith

After graduating from the University of Lincoln with a 2:1 in Law in 2014 Siobhan has dedicated herself to will writing as the head of the Society’s technical team. Siobhan is also the lead tutor for The College of Will Writing, teaching a handful of courses including our SWWEPP 4-day introductory course.

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