Lasting Power of Attorney

Setting up a Lasting Power of Attorney is an important way of managing your future finances and health if you become too unwell to make decisions

A ‘Power of Attorney’ – What is it and who may need one?

It’s a sad but true fact of life that we don’t know what the future holds for us. It’s possible that at some point you may have poor health or are involved in an accident that means you may be unable to make or communicate your own decisions, either temporarily, or for the longer term.

Wouldn’t it be reassuring to have someone you trust, able to act legally on your behalf? And wouldn’t it be smart to have such a provision set up in advance? Thankfully, this is easily possible to consider and arrange at any time.

To be prepared, you can set up a ‘Power of Attorney’ which is a legal document that officially appoints someone – your ‘attorney‘ – to make those important decisions on your behalf.

There are 3 types of ‘power of attorney’:

lasting power of attorney (LPA)
enduring power of attorney
ordinary power of attorney.

Here we will only focus on an overview of ‘lasting powers of attorney’, which are usually the relevant option for most people.

So…what exactly is ‘lasting power of attorney’ (LPA)?

There are two types of LPA: one for making financial decisions and another for making health and care decisions. You can set up LPAs for both types of decisions. It is straightforward to do and there are safeguards built in.

Safeguards

You can only create an LPA if you have mental capacity to do so and you haven’t been put under any pressure to set it up.
An LPA isn’t necessarily permanent. You can cancel it at any time while you retain mental capacity, through the Office of the Public Guardian.
An LPA for health and care decisions can only be used (by your trusted attorney) if you lose mental capacity.

An LPA for financial decisions can also be used by an attorney, with your permission, while you still have mental capacity – but you need to choose this option when setting it up.

Mental Capacity – what is it?

Having mental capacity means having the right to and being able to make your own decisions and understand the consequences of those decisions.

If you lack mental capacity, it means you can’t do one or more of the following:

understand the information relating to the decision
weigh up that information
remember that information for long enough to make your decision
communicate your decision (whether verbally, using sign language, or by other means).

Determining why and when someone has lost mental capacity is not necessarily straightforward. Guidance is usually necessary.

Find out more about mental capacity on GOV.UK

What kind of decisions can be made with an LPA ?

Decisions with a property and financial affairs LPA

With this type of LPA, your attorney can decide on things like:

selling your home
paying your mortgage and bills
arranging repairs to your home.

Key facts:

You decide when you want this type of LPA to start.
This type of LPA gives your attorney the authority to make specified decisions about your finances and property
Your attorney usually has to keep your money separate from theirs and keep accounts to show this.
You can ask for regular updates on how much money you have and how much has been spent.

Decisions with a health and care LPA

With this type of LPA, your attorney can decide things like:

where you live
your medical treatment
the care and support you receive
who you have contact with
what kind of social activities you take part in.

Key facts:

Unlike an LPA for financial decisions, your attorney can only use this LPA if you no longer have mental capacity.
When setting up the LPA, you must decide whether to give your attorney the authority to make decisions about life-saving treatment.
If you lose mental capacity and don’t have this type of LPA in place, any decisions about your health or care will be made by other professionals, such as your GP or your local social services department.

How do you set up an LPA

You can get LPA application forms and an information pack from the Office of the Public Guardian. You can download the forms or fill them in online at www.gov.uk/lasting-power-of-attorney – but it’s important to note that they need to be printed off to be signed.
Alternatively, you can have them sent to you in the post by calling 0300 456 0300.
You can fill out the forms yourself. The Office of the Public Guardian has a step-by-step guide to completing the forms on their website.
You could also use a solicitor to prevent problems later if you’re unsure of the process or your affairs are complex. However, there will be a fee for their service.
The application process includes having the LPA signed by a ‘certificate provider’ – someone who independently confirms that you understand what the LPA is and that you haven’t been put under any pressure to sign it. This person must be either someone you’ve known well for at least 2 years or a professional such as a doctor, social worker or solicitor – not a relation or family member.
Once the LPA form is completed and signed, it must be registered with the Office of the Public Guardian before it can be used. The registration process can take several weeks.