Lasting Powers of Attorney (LPAs) are legal documents that allow you (the donor) to appoint one or more trusted individuals (known as attorneys) to make decisions on your behalf should you become unable to make decisions for yourself due to physical or mental incapacity. If you lack capacity, this means you’re unable to understand information, retain it, use or weigh that information, and communicate decisions based on that information. Incapacity may be a permanent or short-term state – you may also experience fluctuating capacity whereby your ability to make decisions changes frequently or occasionally.
Creating an LPA is an important step in ensuring that your wishes are respected and that you have someone you trust handling your affairs.
There are two types of LPAs, one dealing with property and financial matters, the other with health and welfare matters. They can be made at the same time or separately. To find a specialist lasting power of attorney lawyer near you, visit our find a lawyer page.
LPA for property and financial affairs
This type of LPA allows you to choose people to manage your financial matters according to your specified instructions. They will have the authority to handle tasks such as paying your bills, managing your income, buying or selling property, as well as managing your bank accounts and investments.
The LPA needs to be registered with the Office of the Public Guardian before it can used, and it’s recommended that this is done whilst you retain capacity given the long waiting times to register LPAs. Once registered, you can continue to manage your own affairs for as long as you wish, but your attorneys can also carry out tasks on your behalf whilst you retain capacity.
LPAs for property and financial affairs replaced Enduring Powers of Attorney (EPAs) from 1 October 2007, although any EPAs made before that date are still effective.
LPA for health and welfare
This type of LPA allows you to choose people to make decisions regarding your healthcare, medical treatment, and daily welfare, including decisions about where you live, what you eat, and the kind of medical treatment you receive. It would also cover day to day matters such as your diet and daily routine.
Whilst the format of the LPA is very similar to that of the property and financial affairs LPA, the operation is quite different. Unlike the property and financial affairs LPA, which can be used by your attorneys as soon as it has been registered with the Office of the Public Guardian if you retain capacity, your attorneys can only act under the health and welfare LPA when you lack the capacity to make the decision in question. You may have the capacity to make some decisions about your health and welfare but not others.
Why should you have an LPA?
Having an LPA is important for several reasons:
- Maintaining control – an LPA allows you to retain control over who will make decisions on your behalf if you become unable to do so. By choosing trusted attorneys in advance, you ensure that your preferences and best interests are upheld.
- Avoiding court proceedings – without an LPA in place, if you lose the capacity to make decisions, your loved ones may need to apply to the Court of Protection to obtain the authority to act on your behalf. This process can be time-consuming, expensive, and burdensome for your relatives, adding unnecessary stress during an already challenging time.
- Personalised decision-making – with an LPA, you can specify your wishes and instructions regarding various aspects of your life, including financial matters, healthcare, and daily welfare. This ensures that your attorneys make decisions that align with your values and preferences.
- Family harmony – having an LPA can help prevent disagreements and conflicts among family members. By openly discussing your wishes and appointing attorneys through an LPA, you provide clarity and minimize the chances of disputes arising from differing opinions on what is best for you.
- Peace of mind – creating an LPA offers peace of mind, both for yourself and your loved ones. Knowing that you have taken proactive steps to plan for potential incapacity reassures you that your affairs will be managed by individuals you trust, and it alleviates the burden on your family during challenging times.
Who can you appoint as your attorney?
Choosing the correct attorneys is possibly the most important part of the process of creating LPAs. Your chosen attorneys will have significant authority over your life so you should think carefully about who would be suitable:
- Responsibility and trustworthiness – choose attorneys who are responsible, reliable, and trustworthy. They should have a proven track record of making sound decisions and acting in your best interests.
- Appropriate skills and knowledge – assess whether your attorneys possess the necessary skills, knowledge, and understanding to handle the specific decisions outlined in your LPA. For example, if you have complex financial affairs, consider selecting someone with financial expertise or engaging a professional advisor such as a solicitor.
- Eligibility and suitability – ensure your chosen attorneys meet the eligibility requirements. Typically, they should be at least 18 years old and not bankrupt (for property and financial affairs LPAs). Consider their personal circumstances and availability to fulfil their duties effectively.
- Family members, trusted individuals, or professionals – attorneys can be family members, close friends, or professionals such as solicitors specialising in LPAs. Evaluate the individuals who have your best interests at heart and possess the necessary qualifications for the role.
- Multiple attorneys – you have the option to appoint more than one person as your attorney. It's important to carefully consider how they will work together. They can either act jointly on all decisions or jointly on some matters and independently on others. Seeking professional advice can help determine the best approach to prevent potential conflicts or issues in the future.
How can a lasting power of attorney be used?
An LPA can be used in various situations where you, as the donor, are unable to make decisions or need assistance in managing your affairs. Here are some common scenarios where an LPA can be used:
- Absence or travel – if you are abroad or temporarily unavailable, an attorney appointed through an LPA can handle your financial matters, property, and other affairs on your behalf. They can make necessary payments, manage investments, and handle day-to-day financial responsibilities.
- Illness, injury, or incapacity – in cases where you are facing physical or mental illness, injury, or incapacity, a health and welfare LPA allows your appointed attorney(s) to make decisions regarding your healthcare, medical treatment, and overall welfare. They can consult with healthcare professionals, provide consent for treatments, and ensure your well-being is prioritised.
Busy or unavailable – even if you are not facing a specific medical condition, an LPA can be used when you are busy, unavailable, or prefer to delegate certain responsibilities to your attorney(s). They can handle financial transactions, sign documents, manage property matters, and perform other tasks on your behalf.
It's important to note that the authority of an LPA is typically limited to use in the UK. However, some foreign countries may recognise the authority of an LPA under specific circumstances. It is advisable to seek legal advice or consult with relevant authorities to understand the recognition and applicability of LPAs in foreign jurisdictions if you have concerns in that regard.
When can the attorney act?
The attorney will only be able to act when the LPA has been signed by you and by everyone who is to act as your attorney and has been registered with the Office of the Public Guardian.
A property and financial lasting power of attorney can be used both if you have capacity to act and if you lack mental capacity to make a financial decision.
A health and welfare lasting power of attorney can only be used if you lack mental capacity to make a welfare or medical decision yourself.
With both types of LPA, your Attorney are required to act in your best interests and must following the principles of the Mental Capacity Act 2005:
- Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
- Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
- Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
- Your attorneys must act and make decisions in your best interests when you are unable to make a decision.
Before your attorneys make a decision or act for you, they must consider whether they can make the same decision or act in a way that is less restrictive of your rights and freedom, but it still achieves the purpose.
Can you change your mind once the LPA is in place?
You have the right to cancel your LPA at any time, so long as you have the mental capacity to do so. This applies even if the LPA has already been registered with the Office of the Public Guardian (OPG). Once cancelled, the LPA becomes void.
If you wish to change the attorneys named in your LPA, you will need to cancel the existing LPA and create a new one. It's important to follow the proper legal process and ensure the new LPA is registered before it can take effect.
To address potential circumstances where your appointed attorney is unable to act on your behalf (such as death or incapacity), you have the option to appoint a replacement attorney. The replacement attorney will step in and assume the role if the primary attorney is no longer able to fulfil their duties.
Any new LPA, including changes to attorneys or the appointment of a successor, must be registered with the Office of the Public Guardian before it can be used. Registering the new LPA ensures its validity and enables the attorneys to act on your behalf.
Members of The Association of Lifetime Lawyers can provide expert guidance on creating and navigating LPAs, ensuring that the process is as stress-free as possible and that all legal requirements are met. You can find a Lifetime Lawyer near you here.