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Guide to Lasting Powers of Attorney

A Lasting Powers of Attorney (LPA) is a legal document in which one person (the donor) grants power to another person or persons (the attorney(s)) to take decisions and deal with the donor’s property and finances or to take decisions regarding their welfare.

If you were ever to lose the mental capacity in the future to deal with issues relating to your finances or to make decisions about your health and welfare, a Lasting Powers of Attorney (LPA) is a useful document to have to ensure that someone you trust and whom you have appointed at the time you had capacity will be able to make these decisions on your behalf.

What is meant by “mental capacity”?

In simple terms, mental capacity means the ability to make a decision in relation to a specific issue.

The Mental Capacity Act 2005 (“the Act”) states a person is deemed to lack capacity if:

  • They have an impairment or disturbance in the functioning of their mind or brain; and
  • That impairment or disturbance renders them unable to make a decision about a specific issue at the time it needs to be made.

The issue of capacity is decision and time specific and does not merely extend to that person’s ability to make decisions generally. A person may therefore lack capacity to make a decision about certain issues but not others.

What is the role of the attorney?

Anyone over the age of 18 can act as an attorney (with the exception of paid care workers). An attorney could be family member, friend, spouse or civil partner or even a professional like a solicitor.

An LPA gives a lot of responsibilities to the attorney and they must act in your best interests.

As the attorney has the power to make many important decisions on your behalf, it is important that you take time to carefully consider who you feel would be able to carry out this role and who you trust to act in your best interests.

How should the attorney act?

The Act sets out five main principles that attorney’s should follow. They provide a guide as to how the attorney should act.

These five principles are as follows;

Presumption of capacity: A person must be assumed to have the capacity to make a particular decision unless it is established that they lack capacity.

Support in making decisions: A person should not be treated as lacking capacity to make a particular decision unless all practicable steps have been taken to help them make that decision and those steps have been taken without success.

The right to make an unwise decision: A person should not be treated as lacking capacity because they make an unwise or eccentric decision.

Best interests: Any act done or decision made on behalf of the person who lacks capacity must done in that person’s best interests.

Least restrictive approach: Before any decision is made on behalf of a person who lacks capacity, regard must be had to all effective alternative options and the option which is going to least restrict that person’s rights and freedoms should be taken.

What is meant by “best interests?”

This may be quite obvious and logical to most people. However, when acting on your behalf if you ever do lose mental capacity an attorney must consider your individual circumstances and continue to encourage you to participate in the decision making process whenever they can.

Additionally, the attorney must take into consideration their knowledge of your beliefs and values and your past and present feelings.

They must also consult with your family members, friends or those involved your care to obtain a wider view as to your views and feelings to better inform them as to what may be in your best interests.

When should I make a LPA?

There are many situations in life when you may need someone to make decisions for you. These could be either in the short-term, such as during a brief hospital admission or in contemplation of the effects of a long-term diagnosis such as dementia.

Making an LPA enables you to make provision for any eventuality in which you may need someone to make decisions on your behalf.

Remember – you can only grant someone an LPA while you have the mental capacity to do so. Should you lose capacity in the future you will not then be able to grant the power. Your family will need to apply to the Court of Protection to obtain the power to control your finances. This can be a longer and more expensive route.

For this reason, it is a good idea to put an LPA in place as soon as possible. Many people set them up at the same time as making their will.

What are the types of Lasting Powers of Attorney (LPA)?

There are two types of LPA. They are;

Property and Financial Affairs: This gives the attorney the power to make decisions on issues which include buying/selling property, making investments, paying the donor’s mortgage and bills and giving people access to the financial information of the donor.

Health and Welfare: This gives the attorney the power to make decisions on issues which include where the donor should live, what type of medical treatment the donor should receive and refusing or consenting to life sustaining treatment on the donor’s behalf.

The key difference between these two LPAs is that under a Property and Financial Affairs LPA, an attorney can act on behalf of a donor who still has capacity. An attorney can only act under a Health and Welfare LPA only once the donor lacks capacity.

What are the requirements for a valid LPA?

A valid LPA must;

  • Be created when the donor has capacity
  • Be in writing and in the prescribed form
  • Include information about the nature and effect of the LPA
  • Be signed by the donor to demonstrate their intent for it to apply when they no longer have capacity
  • Be signed by the attorney(s) to demonstrate they understand their duties, particularly to act in the donor’s best interests
  • There is now an optional requirement to name people (not the attorney(s)) who may be interested in being notified about the application to register the LPA
  • Include a certificate provided by a third party who can confirm the donor has capacity at the time the LPA is signed and to ensure that the donor is not being unduly influenced to make an LPA.
  • Be registered with the Office of the Public Guardian before the attorney(s) can act.

How do LPAs come into force?

LPAs must be registered with the Office of the Public Guardian (“OPG”) before the attorneys can act. A donor should register an LPA whilst they still have the mental capacity to do so. However, if the donor signed the LPA whilst having capacity, then the attorney is able to register it on the donor’s behalf later on even if the donor has already lost mental capacity.

Once registered, the OPG then has a responsibility to oversee the actions of the attorney and make sure that they are acting in the donor’s best interests at all times.

The OPG’s registration fee is currently £82 for each LPA. You may be exempt from paying this fee or it may be reduced if you are on certain benefits or if the donor’s gross income is below a certain threshold. It is only the donor’s means that are taken into account for any exemptions or reductions to apply.

What if I already have an Enduring Power of Attorney (“EPA”)?

If you created an EPA prior to 1 October 2007 then this may still be valid. You can no longer create EPA’s.

EPA’s are only for Property and Financial Affairs and attorneys can act under them whilst the donor still has capacity.

They must be registered with the OPG as soon as the donor loses capacity and before the attorney can start or continue making any such decisions on the donor’s behalf.

Legal advice from a solicitor should be sought as to the validity and extent of the attorney’s powers under EPAs already in existence.

Summary

This guide is meant to be a helpful overview of LPA’s only. It is should not be used as a substitute to seeking legal advice on your specific circumstances. If, having read this guide, you feel you would like to make an LPA then you should contact us.

© Guile Nicholas Solicitors

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