What is ‘Lasting Power of Attorney’ (LPA)?

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A lasting power of attorney (LPA) is a legal document that allows you to appoint someone to make decisions on your behalf, when you are no longer able to or if you don’t want to.

Usually, an LPA is planned in advance for when you do not have the mental capacity to make your own decisions and therefore what to make sure these are handled by someone you trust, if you’ve been diagnosed with dementia, for example.

These decisions include your:

  • Finances
  • Property 
  • Future healthcare
  • Personal welfare

What is Mental Capacity?

Mental capacity refers to the ability to communicate decisions at the time they need to be made.

And to have mental capacity, a person must be able to understand the decision they’re about to make, why they need to make it and the possible outcome of that decision.

Sometimes, people can make decisions about certain things but not others.

For instance, they may be able to decide what they’d like for dinner, but they cannot understand how to arrange their home insurance,

And often, their ability to make decisions can change on a day-to-day basis.

However, if a person needs more time to understand or to communicate, it doesn’t necessarily mean they lack mental capacity.

For example, a person with dementia is not always unable to make their decisions for themselves, they just need more time to understand.

And in these instances, there should always be an attempt made to overcome this difficulty and help the person decide on their own.

The Mental Capacity Act

The Mental Capacity Act allows you to appoint someone as an attorney, and they do not have to be a lawyer or someone with any specialist knowledge.

Therefore, a power of attorney can be your partner, a close friend, family member or other professional.

And, this attorney then has the legal power to make decisions for you and continue to make them once you have lost your mental capacity.

Different Types of Power of Attorney

There are 3 different types of power of attorney and you can set up more than one:

Ordinary Power of Attorney

An ordinary power of attorney covers decisions about your financial affairs and you can set this one up even if you have the mental capacity to make your own decisions.

For instance, if you only need cover for a short time whilst you’re in the hospital, or on holiday, you can have someone act on your behalf whilst you’re away.

Lasting Power of Attorney

An LPA covers decisions about both your financial affairs and personal health care.

And this comes into effect once you’ve lost your mental capacity, so usually this would be set up in advance to ensure you’re covered in the future.

Enduring Power of Attorney (EPA)

EPAs have replaced LPAs since October 2007, but if you signed an EPA before this, it should still be valid.

In terms of cover, it’s the same as an LPA where someone makes decisions about your financial affairs and personal health.

2 Types of Lasting Power of Attorney 

Having an LPA is a way of giving someone you trust the legal authority to make decisions on your behalf, when you have lost your mental capacity or it’s likely you will in the future.

There are two types of LPA: one for financial decisions and the other for healthcare decisions.

LPA for Financial Decisions

An LPA for financial decisions can cover things like:

  • Buying and selling property
  • Paying the mortgage
  • Investing money
  • Paying bills
  • Arranging repairs for a property

Even though the LPA is enforced to make decisions on your behalf, you can place restrictions on the types of decisions they make, unless you want them to take full control of this for you.

That said, if you set up an LPA for financial decisions, your attorney must keep a full record of accounts, detailing how much is spent and where, and they need to make sure their money is kept separately from yours.

To add an extra layer of protection, these records can be sent to your solicitor or another family member.

LPA for Healthcare Decisions

Once you have lost mental capacity, an LPA can make decisions that covers your healthcare, which can include things like:

  • Where you should live
  • Your medical care
  • What you should eat
  • Who you should be in contact with
  • What social activities you should do

As well as this, this LPA can have special permissions to make decisions about life-saving treatments.

That said, the attorney would have access to your personal correspondence, such as medical notes.

How to Make a Lasting Power of Attorney

To make an LPA, the attorney firstly needs to be at least 18 years old and have the capacity to make the decisions you need them to make for you.

Secondly, you will need to decide whether you want the attorney to make decisions about your financial affairs and property, or your healthcare.

Although, you can have the same person for both, but you’ll need to submit two separate forms to do this.

To fill out the form, you can get this from the Office of the Public Guardian, or by seeing a solicitor; there’s also a form by the Mental Capacity Act you must use.

Once you receive this form, you must:

  • Name the person you are authorising to act as your attorney
  • Fill out all relevant sections
  • Have the form witnessed by someone other than the attorney
  • Have the form stamped and executed as a deed by a solicitor
  • Ensure you have included information about the purpose of the LPA, including the types of decisions you want them to make, or not make
  • Get the attorney to sign a statement that they understand their duties, including acting in your best interest
  • Name any people you would like to be notified once the LPA has been appointed

If in the instance your attorney does not follow your instructions, you are able to complain to the Office of the Public Guardian and ask for them to be removed from being your attorney; the Court of Protection will decide if this is in your best interest.

Further, the Court of Protection can remove an attorney’s power for: fraud, dishonesty, not being able to act as an attorney due to their own personal circumstances or if they fail to act in your best interest.

If you’d like to know more, please contact us today.

In the meantime, check our Court of Protection Solicitors page.

You may also like:

  1. The Role of a Deputy in the Court of Protection
  2. Court of Protection Solicitor for Mental Health Complications
  3. 3 (of the) Times When You’ll Need a Court of Protection Solicitor