Understanding lasting powers of attorney: types, benefits and the importance of planning ahead
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What is a lasting power of attorney?
A lasting power of attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.
What types of LPAs are there and what can they do?
There are two types of LPAs:
- An LPA for property and financial affairs; and
- An LPA for health and welfare.
The LPA for property and financial affairs gives your attorney permission to make decisions about your money and property on your behalf. This could include managing bank accounts, paying bills and invoices, collecting benefits or pensions and even selling your home. This LPA can be used as soon as it is registered, provided you have given your permission.
The LPA for health and welfare gives your attorney the permission to make decisions about matters relating to your health and welfare, such as your medical care, your daily routine (washing, dressing and eating), whether you move into a care home and whether you receive life-sustaining treatment. Unlike the LPA for property and financial affairs, this LPA can only be used if you have lost mental capacity.
Why might you want other people to make decisions on your behalf?
If you are recovering from an illness or an operation, you may want someone you trust to help with everyday tasks such as paying household bills.
Alternatively, you may need to make longer-term plans, such as if you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future. Currently, more than 800,000 people in the UK have dementia, and the Alzheimer’s Society predicts this will rise to more than 1 million by 2025.
What is mental capacity?
Mental capacity is defined at Section 2 of the Mental Capacity Act 2005.
A person lacks capacity if they are unable to make a decision for themselves in relation to a matter because of an impairment of, or a disturbance in the functioning of the mind or brain. It does not matter whether this impairment or disturbance is permanent or temporary.
A lack of capacity cannot be presumed simply by reference to a person’s age or how they look, their behaviour or a condition they have.
What happens if you lose mental capacity but do not have any LPAs in place?
If you lose mental capacity and are unable to make decisions and/or care for yourself, you will not be able to control who makes decisions for you.
In this situation, someone will need to make a personal welfare application to the Court of Protection to appoint a deputy who can make decisions on your behalf. This could be a family member or friend (but not necessarily) and you will have no control over who could be appointed as your deputy. It is also a much more expensive and lengthy process than putting an LPA in place.
How can I make an LPA?
For further information on LPAs and how to make one please contact your solicitor who will be able to advise you. Alternatively, you can find out more and apply yourself at Make, register or end a lasting power of attorney: Overview - GOV.UK (www.gov.uk).
