Lasting Power of Attorney (LPA)
With life expectancy on the increase in recent years, some people are concerned about what could happen to them in later life in the event that they cannot make decisions for themselves through loss of mental capacity due to Dementia, Alzheimer’s or other medical conditions.
There are a number of legal mechanisms which can be employed to prepare for this possibility and the Lasting Power of Attorney (LPA) is one of the newest and most flexible.
A Lasting Power of Attorney enables the person making it (the donor) to give someone else (the attorney) the legal right to deal with his or her affairs. An 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 of your choosing to look after their 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 creating 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 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. Therefore an LPA gives you more control over who will make decisions on your behalf.
Two distinct variants of LPA are available: A Property and Affairs LPA, which gives someone the authority to deal with your finances and property, and a Personal Welfare LPA which allows someone to make decisions relating to your health care, welfare and in some cases end of life treatment.
It is possible for you to appoint one person to act on your behalf, or to name more than one person and specify different areas that each can make decisions about. It is also possible to specify that decisions should be made jointly by both attorneys.
Personal Welfare Lasting Power of Attorney
A personal welfare LPA can only be used once it has been registered with the Office of the Public Guardian and, critically, only after the donor has lost mental capacity.
It provides the ability to make decisions in a number of areas, including:
- The donor's day to day care
- The donor's personal correspondence
- Where the donor should live and who they should live with
- Consenting to or refusing medical examination and treatment on the donor's behalf
- Assessments for and provisions of community care services
LPAs and the powers contained within them are tailor made to the individual involved. The idea being that you can state in the LPA at the outset what you would like to happen and what decisions the attorney has the power to make, for example, 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.
Property and Affairs Lasting Power of Attorney
A property and affairs LPA can be set up either 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.
It gives the nominated 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 finances
- Buying and selling property
- Claiming, receiving and using all benefits (on the donor's behalf)
- Dealing with the donor's taxes
- Receiving income or inheritance for the donor
- Making limited gifts to others on the donor's behalf
Restrictions do exist in many of these areas aimed at protecting the donor. For example, gifts are limited to customary gifts the donor may have made such as birthday gifts to relatives and must not be unreasonable in size given the donor's financial circumstances.
Critically, an attorney is under a legal obligation to act only in the donor's interests at all times, and various safeguards exist to ensure this.
Lasting Powers of Attorney can be complex and specialist legal advice should always be sought.
Contact us for more information or to arrange a consultation.