A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone (attorney) that you trust to make decisions on your behalf should you require assistance with the management of your financial affairs, possible due to a physical disability or if you no longer have the mental capacity to make your own decisions.
In addition to making a Will, many people draw up an LPA appointing a spouse or a family member to manage their financial affairs for them should they lose physical or mental capacity in the future.
LPAs are also drawn up with the intention that they should be used immediately. This may be because the client has become too ill or frail to manage their own financial affairs.
Types of Lasting Power of Attorney
There are two types:
- A Property and Financial Affairs LPA, which allows your attorney authority to deal with your property and finances, as you specify.
- A Health and Welfare LPA, which allows your attorney to make welfare and health care decisions on your behalf, only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment
Your Attorney
As with any power of attorney, it is an important document and you should take care whom you appoint as they should be trustworthy and have appropriate skills to make the proposed decisions. If you appoint more than one attorney, you can appoint them to always act together (jointly) or together or separately (jointly and severally). You may even appoint them to act jointly for some things and jointly and severally for others, although this should only be done with advice, as it may cause problems when using the power.
You may also choose to appoint a successor to your attorney, in case they die or otherwise cannot act for you.
You should consider the age and circumstances of the potential attorney(s) and whether they will have the time and ability (physical or otherwise) to fulfil their duties.
When can an Attorney act for you?
Your attorney will only be able to act when the LPA has been signed by you and your attorney, certified by a person that you understand the nature and scope of the LPA and have not been unduly pressured into making the power. The certificate will also need to confirm there has not been any fraud or another reason why you cannot make the power. It must then be registered with the Office of Public Guardian before it can be used. The financial LPA can be used both when you have capacity to act, as well as if you lack mental capacity to make a financial decision. The welfare power can only be used if you lack mental capacity to make a welfare or medical decision.
Ordinary Powers of Attorney
You can specify what powers your attorney will have and whether your attorney has a general power to do anything that you are legally able to delegate or a limited power to deal with particular property or affairs.
If you grant a general authority your attorney can:
- Sign cheques, withdraw money and transfer money from and between accounts
- Buy or sell assets and property
- Use assets to finance residential or nursing care for you
Your attorney is under a duty to act in your best interests of the person making the LPA and will be supervised by the Office of Public Guardian.
Existing Enduring Powers of Attorney
Any enduring power, validly made before 1st October 2007, will continue to be able to be used but only in respect of your property and affairs. If you wish to give authority over your health or welfare you will need to make a Health and Welfare LPA.
What happens if you have not made a LPA or EPA?
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf. This is both costly and time consuming.
Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes, you can give a person(s) authority to make those decisions on your behalf by making a welfare LPA.
