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, The Property and Affairs LPA and the Health and Welfare LPA. The forms for both have to be completed carefully and in a specific order. The forms include a Certificate Providers Statement. The Certificate Provider must be satisfied that the Donor understands the power of an LPA. Only certain people can be Certificate Providers.
Although both types of LPA can be made at any time, 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.
If someone loses mental capacity before making an LPA but needs help to manage their affairs then it would be for a family member, friend or person in a professional capacity to apply to the Court of Protection for a Deputyship Order. The process of obtaining a Deputyship Order is more complex and more costly than making an LPA.