Lasting Power of Attorney (LPA)

With increasing life spans, many people are concerned about what will happen to them in later life in the event that they cannot make decisions for themselves through loss of mental capacity. People are generally much more aware of the possible effects of Alzheimer's, dementia, strokes, old age and other conditions which can cause loss of mental capacity.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) provides the opportunity for you to have some say in your future care, and to state what type of medical treatment you would want or not want, as well as appointing someone to look after your property and finances.

You can set up an LPA so that it only activates once you are medically diagnosed as having lost mental capacity.

By setting up an LPA in advance you are able to choose someone you trust to deal with your affairs. If you do not have an LPA, and later lose mental capacity, then someone will need to apply to the Court of Protection to become entitled to manage your affairs and this may not be the person you would have chosen yourself.

A Lasting Power of Attorney enables you (the donor) to give someone you trust (the attorney) the legal right to deal with your affairs.

It is possible to appoint one person to act as the attorney, or to name more than one person and specify different areas that each can make decisions about. It is also possible to specify that both attorneys should make decisions jointly.

Various safeguards exist to protect the donor, most critically that an attorney is under obligation only to act in the donor's interests at all times.

Two types of LPA are available. A Property and Affairs LPA, and a Personal Welfare LPA .

Property and Affairs LPA

This gives the attorney the authority to deal with the following areas, unless restricted by the donor at the time of taking out the LPA:

Dealing with bank accounts and other finances
Claiming, receiving and using all benefits (on the donor's behalf)
Dealing with the donor's taxes
Receiving income or inheritance for the donor
Buying and selling property
Making limited gifts on the donor's behalf

Restrictions exist in many of these areas aimed at protecting the donor. For instance, gifts are limited to customary gifts the donor may have made (eg. birthday gifts to relatives) and must not be unreasonable in size given the donor's financial circumstances.

A property and affairs LPA can be set up to come into force as soon as it is registered, or the donor can restrict it so that it can only be used if they lack mental capacity.

Personal Welfare LPA

This offers broad scope for making decisions in a number of areas. These include:

Where the donor should live and who they should live with
The donor's day to day care, including diet and dress
Consenting to or refusing medical examination and treatment on the donor's behalf
Assessments for and provisions of community care services
The donor's personal correspondence and papers
Complaints about the donor's care or treatment
An attorney can only consent to or refuse life-sustaining or life-prolonging treatment on behalf of the donor if expressly authorised to do so by the LPA

A personal welfare LPA can only be used once it has been registered with the Office of the Public Guardian and also, importantly, after the donor has lost mental capacity

Creating an LPA

LPAs are tailor made to the individual and at the time of making the LPA the donor can modify the scope of the power. For example, the donor may not wish their attorney to have power to decide who the donor has contact with. This can be stated in the LPA at the outset so that it is clear which decisions the attorney is allowed to make.

An LPA provides people with the ability to exercise a much greater degree of control over their future care in the event of loss of capacity.

Lasting Powers of Attorney can be complex and specialist legal advice should always be sought.