A lasting power of attorney (LPA) is a legal document that gives someone else — the attorney — the power to make decisions on your behalf should you become unable to. Situations, where we lose mental capacity and cannot make our own decisions, can happen at any age, whether by accident or declining health.
We all hope it is a position we will never be in, but if we do find ourselves lacking capacity, it is too late to appoint a chosen person to make decisions on your behalf. A lasting power of attorney allows you to plan ahead for this eventuality.
The two types of lasting power of attorney
In the UK there are two types of LPA, a health and welfare LPA, and a property and financial affairs LPA. With both, a person, known as the donor, can give someone, known as the attorney, the legal power to make decisions on their behalf.
A health and welfare lasting power allows welfare decisions to be taken, ranging from your daily routine to making medical treatment decisions. Importantly, this power can only be exercised when you have lost the capacity to do so.
A property and financial affairs lasting power will cover decisions like managing investments and property matters or just accessing your bank account to pay bills. Unlike a health and welfare attorney, if you consent, they can take decisions and act even if you have mental capacity.
Although it is common for both roles to be given to the same person, you can create the powers to meet your needs. Only one type of power of attorney may be created, or the roles given to different people, if the donor feels that best serves their interests.
The process of creating a lasting power of attorney
At its most basic, an LPA requires completing application forms and then submitting them to the Office of the Public Guardian. The process can be done online but can be time-consuming, taking at least 20 weeks. However, given the importance of an LPA, most people will want to take a more considered approach, including receiving professional advice.
Typically, the process involves choosing attorneys who can act on your behalf. There are a few limits on whom you can choose, in that they must be over 18 and have the mental capacity themselves.
People often choose close relatives, like their partner or children. However, potential complications must be considered, for example, if you own a property with your attorney, it limits the decisions they can take alone. It’s usual to appoint more than one person to avoid such problems and to ensure decisions can still be made if one attorney is unavailable.
When considering the choice of attorney, the most important factor is whether you can trust them to act in your best interests. It is a critical decision, family members might be affected by their emotional attachment, for example, while using an independent professional might mean they do not know your values or beliefs.
And if you think they sometimes make poor decisions and handle their finances or health badly, you might want to consider how well they will look after your interests!
The next stage is defining the decisions you want them to take, and how you want them taken. This is not just about the type of LPA, but about the types of decisions you allow them to make. You might, for example, want to exclude some assets from being disposed of by your attorney.
You can also state whether decisions can be taken by a single attorney, or only jointly. While allowing each attorney authority to act is practical in most situations, there might be some important decisions where you want them to agree.
Once you have decided on these, you need to complete a form for each power of attorney. You must also complete a separate form to notify two people you are making an LPA and to give them time to object if they don’t believe you are of sound mind to do so.
Your application must be submitted to the Office of the Public Guardian, which will process and then issue the power of attorney. Your attorneys will only be empowered to act once this application has been accepted.
The role of the Court of Protection
The Court of Protection deals with legal issues when someone lacks capacity. Much of its remit covers those who do not have mental capacity and have not made an LPA. For example, if someone does not have capacity and has not made an LPA, the court can appoint a ‘deputy’. They also have some powers related to lasting powers of attorney.
The Court of Protection will consider any objections to an LPA. This might be where a family member objects to the proposed appointment, or even feels the donor already lacks the mental capacity. In these instances, the court will determine whether the power of attorney will be registered.
In situations where an attorney is unable to act for any reason, the court can use its powers to appoint a deputy. This power may be used if the attorney dies or loses mental capacity and no alternative attorneys are identified.
Finally, the court can revoke lasting powers of attorney. Although attorneys have the freedom to make decisions on the donor’s behalf, they must follow some basic rules. These include following the instructions and preferences in the LPA, helping the donor make their own decisions where possible, and always acting in their best interests. Where there is concern that this is not happening, the court can revoke the power of attorney.
To Conclude – Retaining control regardless of mental capacity
A lasting power of attorney is a legal instrument that gives someone else, the attorney, the power to make decisions on the donor’s behalf. There are two types, a health and welfare LPA, and a property and financial interests LPA.
However, an individual LPA can express specific limits and wishes about what and how decisions are made. Without an LPA, it can be for the Court of Protection to decide how such decisions are handled.
The loss of mental capacity is something that can happen to anyone, so it’s wise to plan ahead. Setting up a lasting power of attorney means that even if you lose capacity, you can still have some control over the welfare and financial decisions made about you, and that it’s those you really trust who are making those decisions.
