Lasting Powers Of Attorney - LPAs
Lasting Powers of Attorney (LPAs) were introduced by the Mental Capacity Act 2005 and replace the old regime of Enduring Powers of Attorney (EPAs). LPAs came into force on 1 October 2007. LPAs allow you to make advance arrangements to ensure that if an accident or illness were to affect your mental capacity to act or make decisions for yourself, your personal and business affairs and/or your welfare are attended to by a person or persons of your choosing.
What is a Lasting Power of Attorney?
LPAs are documents whereby a Donor (the person granting the power) confers on their chosen Attorney or Attorneys the authority to make decisions on the Donor’s behalf. These decisions can relate to personal welfare issues and/or property and finance matters.
There are two types of LPA:
1. Personal Welfare Lasting Powers of Attorney
These documents allow the named Attorney(s) to make decisions on behalf of the Donor regarding his or her personal welfare, which covers healthcare and can include, where appropriate, medical treatment decisions.
When making a Personal Welfare LPA the Donor must decide whether the named Attorney(s) are to be authorised to make decisions in relation to life-sustaining treatment.
2. Property and Affairs Lasting Powers of Attorney
These documents are more akin to the EPAs that they have replaced. They give the named Attorney(s) the power to make decisions regarding the Donor’s finances and property.
Do I need to have both forms of LPA?
You do not need to put in place both a Personal Welfare LPA and a Property and Affairs LPA. You can choose instead to only put in place one of these forms. If you do choose to put both in place you can name a different Attorney or different Attorneys for each form.
Why do I need an LPA?
LPAs allow the Donor to delegate decisions relating to his or her personal welfare and/or their property or finances to their Attorney(s). This ensures that somebody who is trusted by the Donor is making decisions on their behalf in the event that the Donor loses his or her mental capacity. Without a LPA a Court application has to be made to appoint a Deputy. The person(s) named as Deputy are chosen by the Court and not by the Donor and, accordingly, could be someone the Donor would not ordinarily choose to make such decisions.
LPAs go further than EPAs in attempting to give the Donor as much power as possible over any decision making process. The Mental Capacity Act 2005 (the Act that introduced LPAs) stresses that a person who has defective or limited mental capacity must be given every possible assistance to enable them to make decisions on their own behalf. Accordingly, the Attorney(s) are under an obligation to involve the Donor in any decision making process where this is possible.
The Donor can also now choose who they would like notified when an application to register their LPA is made. Those notified then have the opportunity to object to the registration. The Donor can name up to a maximum of five people to be notified or, if he or she so wishes, they can ask that no one be notified.
Personal Welfare LPA or Advance Decision?
Unlike Advance Decisions (formerly known as Advance Directives or Living Wills), which deal with a person’s preference not to undergo life saving treatment in named circumstances, the Personal Welfare LPA confers the authority on the named Attorney(s) to agree to or refuse medical treatment on behalf of the Donor.
The Attorney(s) can also make decisions such as where the Donor should live and relating to day to day care if required (ie concerning diet and dress).
An existing Advance Decision will not be revoked by the creation of a Personal Welfare LPA so the named Attorney(s) cannot consent to medical treatment on behalf of a Donor if the Donor had already specified that in those particular circumstances they would not want to receive treatment.
When do I need an LPA?
LPAs must be signed by the Donor before he or she loses their mental capacity. The Donor must still be capable of appreciating what he or she is signing and the nature of the powers being given to their Attorney(s).
LPAs cannot be used by the chosen Attorney(s) until they have been registered with the Office of the Public Guardian. Registration can either take place immediately (ie whilst the Donor still has mental capacity) or be delayed until a later date (ie until the Donor loses capacity and the LPA is needed).
It will take at least eight weeks to register a LPA and the power cannot be used by the Attorney(s) during that registration process.
LPAs must be certified by an independent third party (the Certificate Provider) before the Attorney(s) can sign to accept their appointment. The Certificate Provider must state that in his or her opinion the Donor has mental capacity to create the LPA and is not being subjected to any pressure from any other party to enter into the LPA.
Who can provide the certificate?
There are two categories of people who can provide a certificate for the LPA.
1. Somebody who has known the Donor personally for at least two years preceding the date on which the LPA certificate is signed.
2. Somebody who, on account of his or her professional skills and expertise (eg a solicitor), feels reasonably competent to provide such a certificate.
Who should be the Attorney(s)?
The Attorney(s) must be somebody that the Donor trusts and can include friends, relatives or professional advisers. A trust corporation can be appointed Attorney of a Property and Affairs LPA but not of a Personal Welfare LPA.
The Donor can choose to appoint one or more Attorneys to make all decisions on their behalf or they can appoint different Attorneys to make decisions relating to different areas of their life and affairs. If you appoint more than one person as your Attorney you can require your Attorneys to act either together, or together and independently, or together in respect of some matters and together and independently in respect of others.
The Donor can also name substitute Attorney(s) if one or more of their original Attorneys is unable to act (eg if an Attorney has predeceased the Donor).
What powers do Attorneys have?
Both forms of LPA give the named Attorney(s) wide powers. The Donor must therefore decide when creating the documents whether the Attorneys’ powers should be restricted in any way by the document.
Unless the Donor chooses to place restrictions on the Attorneys’ powers under the Property and Affairs LPA the Attorney(s) will have general authority to deal with the Donor’s financial affairs, although they will be automatically restricted as regards their power to make gifts of or from the Donor’s property over and above customary gifts eg Birthday and Christmas presents.
With the Personal Welfare LPA, not only must the power be registered with the Office of the Public Guardian before it can be used but, in addition, the Donor must already have lost the capacity to make his or her own decisions.
Can a LPA be revoked?
The Donor can revoke their LPA at any time provided that he or she still has the mental capacity to do so.
The Property and Affairs LPA is automatically revoked if either the Attorney(s) or the Donor are made bankrupt. However, bankruptcy does not affect the validity of a Personal Welfare LPA.
If the Donor names their spouse or civil partner as an Attorney then divorce or the dissolution of their civil partnership automatically revokes the LPA.
What should I do now?
If you wish to complete a LPA, or if you have any further questions, please contact either Svetlana Fodor or Sinead Rickard on 01732 770660.