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Lasting Power of Attorney

Definition

A Lasting Power of Attorney (LPA) is a legal document which gives somebody else the authority to take control of the financial affairs of another person or to take decisions regarding the health and welfare of that person if they do not have the capacity to do so themselves. So, essentially, it is giving somebody else the power to act on your behalf if you yourselves can’t. This does not mean that a stranger can act on your behalf, it is somebody that you feel able to trust, usually a relative or friend, who will act for you if, due to mental or physical factors, you are unable to do so.

It can be made now for the future, thereby giving the attorney the authority to act on your behalf when you either can’t or choose not to take such decisions. It is therefore an important document which must adopt a specific legal format:

  1. Before it can be used it has to be registered with the Office of the Public Guardian.
  2. Before it can be registered some “named” people associated with the donor have to be told about it and given the opportunity to object.
  3. It has to include a certificate from an appropriate person that the donor understands the Lasting Power of Attorney and has not been induced into making it.

Different types

  1. A property and affairs LPA – giving to the attorney the power to make decisions about the donor’s property and financial affairs.
  2. A Personal Welfare LPA – giving the attorney the authority to make decisions on the donor’s healthcare and personal welfare. This will only be the case if the donor no longer has the mental capacity to make these decisions and could include having to make decisions such as whether or not to accept “life sustaining treatment”. 

Who can be an attorney

The attorney must:

  • Be over the age of 18
  • Have mental capacity
  • Not be a bankrupt. 

It is obviously a position of great responsibility and the donor, if they are in a position to do so, should check that the attorney is happy to be put into this position and also that they are capable of taking these difficult decisions. 

The donor

The donor can be anyone who:

Is over the age of 18

Has the capacity to understand the nature and meaning of the document. 

Because it is a very personal document, it cannot be made with somebody else. So, a husband and wife for instance, would need to make separate documents. 

Attorney’s responsibilities

The LPA first has to be registered with the Office of the Public Guardian. It is also important to note that an attorney can act even if the donor still has mental capacity in a Property and Affairs LPA, though only if the donor has lost mental capacity in a Personal Welfare LPA. 

  • They must act within the scope of the authority given in the LPA and in accordance with the principles set out in the Mental Capacity Act 2005.
  • The attorney should abide by the guidance in the Code of Practice to the Mental Capacity Act and should only make decisions which are in the best interests of the donor.