This article was originally published by Hamilton George Care and can be accessed here. 

Why make a LastingPower of Attorney?

Most people are aware of the importance of making a Will to provide what should happen to your estate in the event of your death.  It is also possible to make provision for the management of your affairs in the event of your becoming incapable of managing them yourself during your lifetime.  This can be done by making a document called a Lasting Power of Attorney or ‘LPA’.   As the risk of mental incapacity increases (e.g. with old age or illness), so the importance of having an LPA grows.

What is an LPA?

LPAs enable a ‘donor’ (the person making the LPA) to appoint one or more people, known as ‘attorneys’, to make decisions on their behalf. There are two types of LPA: one for property and financial affairs, and one for health and care. In both cases, an attorney should be someone that the donor trusts to make important decisions about their life, such as a family member or a close friend.  It is possible to appoint professional attorneys (e.g. a solicitor or accountant), particularly in the case of a financial LPA.  However, a professional attorney is likely to charge fees for their time and this will need to be borne in mind.

It is usually advisable to appoint more than one attorney and, if doing so, consideration needs to be given to whether those attorneys will have to act jointly (i.e. taking all decisions together), or whether they will be able to act independently of each other.  This will need to be specified in the LPA document itself.  It can also be sensible to appoint replacement attorneys, who would act in the event of the first-named attorneys being unable to act for any reason.

LPAs can only be used once they have been registered with the Office of the Public Guardian (a process which currently takes up to 20 weeks) and, until then, attorneys have no powers to act on behalf of a donor.  Once registered, a Property & Financial Affairs LPA allows attorneys to make decisions about matters such as operating the donor’s bank account, paying bills, and buying or selling property.  It is possible to specify within the Property & Financial Affairs LPA that attorneys can only act once the donor has lost capacity, rather than as soon as the LPA has been registered.

By contrast, a Health & Care LPA can only be used once the donor has lost capacity. It allows attorneys to make decisions about the type of care and medical treatment the donor receives, including whether the donor stays in their own house or moves into a residential care home, and day to day matters such as their diet, dress or daily routine.

There is a separate section in the Health & Care LPA dealing with life-sustaining treatment, which allows the donor to choose whether or not to give their attorneys authority to give or refuse consent to life-sustaining treatment on their behalf.

Interaction between Health & Care LPAs and Advance Decisions

A Health & Care LPA is to be distinguished from an Advance Decision (previously known as a Living Will).  Whereas a Health & Care LPA involves appointing someone else to make decisions on your behalf, an Advance Decision involves you making your own decisions about the types of medical treatment you would wish to receive in the future.  Advance Decisions are beyond the scope of this article, but it is worth noting that there is potential for overlap between a Health & Care LPA and an Advance Decision.  Whilst it is possible to have both documents in place, care is needed to avoid one of the documents inadvertently rendering the other invalid.

Mental Capacity and LPAs

It is only possible to make an LPA whilst you have mental capacity and, where a loved one has lost capacity without having put an LPA in place, the only option is to make a Deputyship application to the Court of Protection, which is a more time-consuming and costly process than making an LPA.

This leads to the question of how to determine whether a personal making an LPA has sufficient capacity to do so.  Whilst capacity is a legal concept, in practice, where capacity may be an issue, it is likely to be the doctors or medical professionals who will be called upon for their advice as to whether or not the person has sufficient capacity to make the LPA.  In carrying out their assessment they are likely to consider whether the person making the LPA can understand the following questions:

• What is an LPA?
• Why does he/she want to make an LPA?
• Who he/she is appointing as his/her attorney and why he/she has chosen that person?
• What is the nature and scope of the powers he/she is giving the attorney?

There are also some general principles about assessing capacity:

• The starting point in any assessment of capacity is a presumption that the person concerned does have the power to make the decision in question.
• Capacity is decision-specific, i.e. the doctor will be specifically assessing whether the person has capacity to decide to make an LPA.
• It is also time-specific, i.e. does the person have sufficient capacity at the moment they are making the LPA (recognising that capacity that can fluctuate from time to time)?
• Capacity is not to be judged simply on the basis of a person’s age, appearance, condition or aspects of their behaviour.

As can be seen, the system is therefore very much geared towards enabling a person to make their own decisions (e.g. to make an LPA) if they can do so.

How to make an LPA

It is possible to make an LPA online or using paper forms downloaded from the government website without the need to seek legal advice.  That said, if there is any uncertainty over mental capacity, it is advisable to consult a solicitor and, as mentioned, it may also be necessary for medical advice to be obtained.

Even if mental capacity is not an issue, many clients still prefer to ask us to prepare LPAs on their behalf for the peace of mind of knowing that the forms are being completed correctly and in light of their particular circumstances.  Having a solicitor help with putting your LPAs in place also reduces the risk of the forms being rejected by the Office of the Public Guardian when they have been completed or signed incorrectly.

Legal advice may also be required where a client already has an Advance Decision (or Living Will) and now wishes to make a Health & Care LPA, to ensure that the LPA does not invalidate the Advance Decision, and vice versa.

Conclusion

None of us know what lies ahead, but by putting LPAs in place you can be reassured that if you were to ever lose capacity, you have done what you can to make a difficult time that bit easier for yourself and your loved ones.

Should you have any questions or require any assistance with putting an LPA in place, please do not hesitate to contact a member of the Private Client department at Hunters Law.