If you are concerned about your future and how decisions would be made on your behalf in the event that you ever lost the ability to manage your own affairs, you may want to consider making a Lasting Power of Attorney (LPA).
The following guide looks at the question of ‘what is Lasting Power of Attorney?’, both legally and practically speaking, for both you as the donor and for any attorney(s) that you may choose to appoint.
What is Lasting Power of Attorney: LPA defined
Power of Attorney refers to the appointment of another person, or persons, to make decisions on your behalf in the event that you no longer wish to make your own decisions, or your ability to do so has been diminished or taken away by reason of illness, accident or disability.
In other words, it gives the appointed person(s) the legal authority to act for you, typically in relation to your property and financial affairs, although a Lasting Power of Attorney can also extend to decisions about your health and welfare.
In some cases, a Lasting Power of Attorney can be used while mental capacity is still held, but can also continue once it is lost. Unlike an Ordinary Power of Attorney it will not come to an end if the donor loses the ability to make their own decisions.
On the contrary, and as the name suggests, a Lasting Power of Attorney will carry on after the donor has become unable to manage their own affairs, whether this be on a temporary or permanent basis.
So what are the different types of Lasting Power of Attorney?
What is Lasting Power of Attorney: LPA categories
There are two different types of Lasting Power of Attorney, where it is possible to set up both at the same time:
- Property and financial affairs LPA, and
- Health and welfare LPA.
It is generally recommended that you set up both, given that each provides the attorney(s) with different types of decision-making power.
Property and financial affairs LPA
A property and financial affairs Lasting Power of Attorney will give your attorney(s) the right to make financial decisions on your behalf. This can include the following:
- managing your bank or building society account(s), including writing cheques or paying bills
- collecting your pension
- claiming and collecting benefits
- renting or selling your home
- carrying out your trade or business
- honouring any contractual obligations
- conducting legal proceedings on your behalf.
This type of Lasting Power of Attorney can be used either while you still have capacity, or in the event that you become unable to manage your own affairs.
Once registered with the Office of the Public Guardian (OPG), it can be used immediately or, alternatively, held in readiness until required.
Health and welfare LPA
A health and welfare Lasting Power of Attorney will give your attorney(s) the right to make decisions about your personal wellbeing and healthcare if at some point in the future you are unable to make those decisions yourself.
This can include the power to make decisions about the following matters:
- Your daily care routine, such as dressing and diet.
- Where you are to live, for example, whether moving into a care home is best for you or whether you can continue to live at home with help from social services.
- Receiving healthcare or medical treatment, including life-sustaining intervention.
As a donor with a progressive illness, or simply to allay concerns about your future, you may want to consider in advance whether you would want medical treatment in defined circumstances.
You can record your wishes while you are mentally well, so that any attorney acting on your behalf has some guidance on what decisions you would like to be made in the event that you can no longer decide these things for yourself.
If you make a decision to refuse future medical treatment, known as an advance decision, typically this cannot be overriden by your attorney, not unless the Lasting Power of Attorney was made subsequently and specifies that the attorney has the power to do so.
Given the nature of the decisions to be made on your behalf under a health and welfare Lasting Power of Attorney, this type of LPA will not come into force until the donor has lost the capacity to make decisions for themselves.
What is Lasting Power of Attorney: Making an LPA
In either case, for a Lasting Power of Attorney to be valid, you must fully understand the implications of the arrangement at the time of making it.
By way of verification, an independent certificate provider will need to sign to say that you are aware of the implications and that nobody is pressuring you into making a Lasting Power of Attorney.
The Lasting Power of Attorney will also need to be registered by the Office of the Public Guardian before an attorney can start making decisions on your behalf.
The OPG will make sure your attorney, or attorneys, are aware of their duty to act in your best interests, maintaining a duty of care towards you, rather than to benefit themself.
Specifically, your attorney(s) must keep your money and property separate from their own, and keep accurate accounts in all of their dealings as an attorney.
What is Lasting Power of Attorney: LPA problems
Lasting Power of Attorney provides the appointed person(s) with the power to make important and potentially life-changing decisions about your future. Sadly, in some instances, this can lead to financial misuse and fraud on the part of an attorney.
If you are unhappy with the decisions that are being taken by an attorney, either as a donor or a concerned relative, there are a number of ways that you can make a complaint.
In particular, concerns can be raised with the Office of the Public Guardian, which has responsibility for monitoring attorneys and can investigate allegations of mistreatment or fraud.
The OPG can also report concerns to another agency, such as the police or social services, where appropriate.
In circumstances where an attorney is not acting in the best interests of the donor, the Court of Protection can be asked to intervene to revoke the Lasting Power of Attorney or remove the attorney in question.
For donors who still have the mental capacity to make their own decisions, the LPA can be cancelled at any time, even if the application has been registered by the Office of Public Guardian.
To cancel an LPA, you will need to notify the OPG, as well as the attorney(s), so that the LPA can be removed from the register.
What is Lasting Power of Attorney: LPA legal advice
Consulting an expert is the best way to make sure a Lasting Power of Attorney is properly set up and registered, and that it is in the best interests of the donor.
Your legal adviser can explain who you can choose to act as an attorney, how they should act, and what you can do if your attorney isn’t acting in your best interests.
Your adviser will also ensure that you fully understand the legal and practical implications of any decisions that you make when appointing an attorney and deciding upon the remit within which they can make decisions on your behalf.
With a Lasting Power of Attorney properly in place, you can then go on to live your life with the peace of mind that your future has been properly safeguarded.
Please note that in the unfortunate event that there has been insufficient time to take these precautionary steps, legal advice should be sought immediately by the relatives or carers of any individual who has become recently incapacitated by reason of illness, accident or disability – not least where important decisions need to be made on their behalf.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert legal advice should be sought.