A Lasting Power of Attorney (“LPA”) is a legal instrument by which someone (“the Donor”) gives someone they trust (“the Attorney”) power to make decisions and carry out transactions on behalf of the Donor even if, in the future, the Donor can no longer make decisions personally.
A Lasting Power of Attorney is a powerful tool, which should not be given lightly. Although the (lengthy) forms that are needed to create an LPA can be bought or downloaded from the internet, you may want to take advice before proceeding.
Mental Capacity Act 2005
This Act (which introduced LPAs) enables people to plan ahead for a time when they may lose mental capacity. It also provides a framework to empower and protect people who may not be able to make some decisions for themselves, clarifying who can make decisions and how decisions should be made.
Code of Practice
The Mental Capacity Act is supported by a Code of Practice which gives detailed guidance to people working with and/or caring for others who lack mental capacity.
Types of Lasting Power of Attorney
There are two types of LPA. Both can be made at any time but neither can be used until they have been registered with the Office of the Public Guardian (“OPG”). A registration fee is payable.
Property and Affairs LPA
This type of LPA allows the Attorney to manage the Donors finances and property. It can be used (once registered with the OPG) whilst the Donor has capacity to make decisions for him/her-self but the Donor can put in a restriction for example that it can only be used at some time in the future if they lose their capacity to make decisions for themselves or become incapable of managing their own Property and Affairs.
Health and Welfare LPA
The Health and Welfare LPA authorises the Attorney to make decisions about the Donors personal welfare (including healthcare treatment). It can only be used when the Donor lacks capacity to make decisions.
Obligations and Responsibilities
The Mental Capacity Act 2005 and Code of Practice provide a detailed framework; making clear who can make decisions, in what situations and how they should go about the decision making process. Together, they provide guidance for Attorneys and others who look after or care for adults who lack mental capacity.
- Make decisions in the Donors best interests
- Act in accordance with the principles of the Act
- Have regard to the guidance set out in the Code of Practice
- Not exceed the scope of their authority under the LPA.
- Particular duties and obligations of an Attorney under an LPA include (but are not limited to)
- A duty of care to the Donor when making decisions on his/her behalf
- A duty to carry out instructions as required by the LPA
- A duty of good faith, to act honestly and with integrity
- A duty of confidentiality (unless the Donor has otherwise agreed)
- A duty to keep the Donors money and property separate from their own
- A duty to maintain and keep accurate accounts of all their dealings as Attorney
- An obligation not to benefit themselves and not to profit from their position as Attorney
- A requirement not to delegate responsibilities to others (unless the LPA authorises otherwise).
The duties and responsibilities of an Attorney are complex and onerous; agreeing to act as an Attorney is not a decision to be taken lightly. If you are asked to be an Attorney you may want to take advice before proceeding.