Written by Zara North
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document which allows an individual (the donor) to appoint attorneys to assist with making decisions, or to allow attorneys to make decisions on the donor’s behalf.
No one has the automatic right to make decisions regarding someone else’s health or finances so a Lasting Power of Attorney is particularly important if the donor no longer has the capacity to make decisions for themselves. There are two types of LPA: Property and Financial and Health and Welfare.
Property and Financial
A Property and Financial LPA gives attorneys the power to make decisions including: selling a property, paying bills and managing investments. Attorneys are able to do whatever the donor is able to do with their own assets.
A Property and Financial LPA can be used once the document has been registered at the Office of the Public Guardian. This means that attorneys can use the document whilst someone still has capacity or if they lose capacity. A Property and Financial LPA is a powerful document and attorneys must make decisions in the donor’s best interest. Their actions are regulated by legal guidelines.
Health and Welfare
A Health and Welfare LPA gives attorneys the power to make decisions including: choosing which care home the donor resides in, diet and dress and any medical treatment received. There is also the option to give attorneys the authority to consent or refuse life sustaining treatment on the donor’s behalf. Unlike the Property and Financial LPA, the Health and Welfare LPA can only be used if someone has lost capacity to make decisions for themselves.
LPA documents are powerful as they give attorneys authority to make decisions regarding Health and Finances. For this reason, attorneys must be people who the donor fully trusts and knows well. Up to four attorneys can be appointed and they do not have to be family members.
Where more than one attorney is appointed, the donor can choose how the attorneys make decisions. There is the option to appoint attorneys on a joint basis or on a joint and several basis. If attorneys are appointed to act on a joint basis, they must make decisions together. If one attorney cannot act, then the documents will cease to operate. If attorneys are appointed to act on a joint and several basis, the can make decisions together or alone. This option is a more flexible option than the first, as if one attorney cannot act, the other(s) still can.
It is also possible to appoint a sole attorney but if they cannot act, the documents will cease to operate.
Replacement attorneys can be appointed, who usually step in if one of the original attorneys cannot act. There is the option to let attorneys make some decisions jointly and others jointly and severally.
Registration of LPA’s
Before LPA’s can be used by attorneys, they must first be registered with the Office of the Public Guardian (OPG). The OPG oversees the conduct of attorneys and keeps a central register of LPA documents. It is currently taking up to 20 weeks to register an LPA.
When an LPA has not been made
In situations where an LPA has not been made and it is deemed that someone no longer has the capacity to make an LPA, then an application may need to be made to the Court of Protection (COP) for a Deputy to manage the affairs. A COP application is a lengthy process with ongoing fees and the Court may refuse a Deputies application. The COP is also very reluctant to make orders regarding someone’s Health so an application may be dismissed by the Court. There may not be any say, as to who is appointed as the deputy, which may result in someone being appointed who the donor does not want to deal with their affairs.
For further advice to or make an LPA contact our Private Client Team on 020 8304 4884.