A Lasting Power of Attorney (LPA) is a way of giving someone the legal authority to make decisions on your behalf. They are a powerful and important part of future planning.
There are two types of LPA:
- Property and Financial Affairs LPA Concerning decisions about property and finance
- Health and Welfare LPA Concerning decisions about healthcare and welfare
Property and Financial Affairs LPA
It’s a wise precaution to appoint an attorney to deal with your affairs in the event that you become mentally incapacitated. This type of LPA must be registered with the Office of the Public Guardian before it can be used, so the document has no au-throaty until that time.
There is no requirement for the onset of mental incapacity for you (the Donor) to register the LPA – it can be registered for a variety of reasons that simply make it more practical for you to have an Attorney acting on your behalf.
It covers a wide range of decisions relating to property and finance including:
- Buying or selling property, and other investment decisions
- Paying the mortgage and other bills
- Giving people access to the financial information of the Donor (the per-son who created the LPA);
- Arranging repairs to a property and other practical decisions
You can restrict or specify the types of decisions you wish your Attorney to make on your behalf.
Once registered, the Property and Financial Affairs LPA can be used infinitum, and it becomes a very powerful document.
Health and Welfare LPA
This type of LPA covers decisions about health care as well as personal welfare. It differs from the Property and Financial Affairs LPA in that it can be used only if someone has become mentally infirm. If the Donor is mentally capable but physically infirm an Attorney cannot make a decision about their health and welfare – the Donor can make it themselves.
Again it must be registered with the Office of the Public Guardian before it can be used.
Decisions an Attorney can generally make on a Donors behalf:-
- Whether the Donor should consent to a certain type of medical or life sustaining treatment;
- Where the Donor should live, what they should eat, decisions about their lifestyle
You can restrict or specify the types of decisions your Attorney can make or you can allow them to make all decisions on your behalf
Should you ever be unable to make personal welfare decisions for yourself your Attorneys have a duty to consult you at all times in any decisions made on your behalf.
When can the LPA be used?
The Mental Capacity Act 2005 has ensured that there are further levels of protection in place for the Donor of an LPA.
Your Attorneys will only be able to act for you once the LPA has been signed and then certified by an independent person to confirm that you understand the document and have not been pressurised into signing it. As mentioned above it must be registered with the Office of the Public Guardian before it can be used.
Also, the application process for registration of the LPA to the OPG requires a certain procedure including notice being given to a third party of the intention to register the document. This is to protect you if you did not want the document to be registered until a future date and your Attorneys rather than you make an application for registration.
It goes without saying that a Donor should only appoint Attorneys that they trust to make the same decisions that they would if they were able to.
It is advised that more than one Attorney be appointed, and that all Attorneys are authorised to act individually as necessary.
What happens if you do not have a Lasting Power of Attorney or Enduring Power of Attorney in place?
If you do not have a Property and Financial Affairs LPA or an Enduring Power of Attorney in place and you become mentally incapable of making your own decisions it is likely that an application would need to be made to the Court of Protection for an Order appointing somebody else (a Deputy) to act on your behalf
By appointing your own Attorneys, you will avoid the increased costs involved in appointing a Deputy, and of decisions being made about your Deputy without your input or approval.