People who wish to plan ahead for the possibility that they might lack the capacity to make particular decisions for themselves in the future are able to grant Lasting Powers of Attorney (LPAs) to individuals of their choosing (called “attorneys), to make certain decisions on their behalf.
In order to make an LPA, the donor must be over 18 years of age and have mental capacity at the time of making the LPA.
What are the types of LPA?
There are two different types of LPA: a property and financial affairs LPA, and a health and welfare LPA. They are distinct and separate from each other. A donor may make one or the other or both.
- Property and financial affairs LPA
A property and financial affairs LPA grants power to the attorney(s) to make financial decisions on behalf of the donor. Such decisions may relate to paying of bills, collecting benefits, selling a home or investments, and operating bank accounts. The LPA can be used as soon as it is registered, with the permission of the donor.
- Health and welfare LPA
A health and welfare LPA grants power to make decisions such as medical care, daily health routines, and moving into a care home. The LPA is created before a donor loses mental capacity but can only be used when the donor has lost capacity (or the attorney reasonably believes that the donor has lost capacity).
The attorney cannot make decisions about life-sustaining treatment unless the donor specifically permits this in the LPA.
Can both types of LPA be in existence at any one time?
It can be sensible to grant both a property and financial affairs LPA and a health and welfare LPA. The donor can appoint the same attorneys under both LPAs, or different attorneys under each type of LPA. If different attorneys are appointed under each type of LPA, they may need to act together on some decisions. For example, the donor may own a property that will need to be sold at some point; the decision about where the donor will live can be taken by the attorney(s) under the health and welfare LPA, and any decisions relating to the sale of the property can be taken by the attorney(s) under the property and financial affairs LPA.
Who can be an attorney?
Any person can be an attorney provided they are over the age of 18 and have mental capacity to make their own decisions (and, in the case of a property and financial affairs LPA, they must not be bankrupt or subject to a debt relief order).
An attorney can be a relative, a friend, or a professional (such as a GP or solicitor). And a donor can appoint more than one attorney. Attorneys can be appointed to act jointly (where all attorneys must agree or they cannot make the decision), jointly and severally (where attorneys can make decisions on their own or with other attorneys), or jointly in respect of some matters and severally in respect of others..
Replacement attorneys can also be appointed, as a safeguard, to replace the attorneys if they are no longer to act as attorneys.
How is an LPA prepared and signed?
An LPA will need to be in a prescribed format. It will need to be signed by the donor in the presence of a witness who has known the donor for two years, such as friend, neighbour, or professional such as an adviser or GP. They will sign the “LPA certificate” and will be known as the LPA certificate provider. The LPA certificate states that the donor understands the purpose and scope of the LPA, that no fraud or undue pressure is being used to induce the donor to make the LPA, and that there is nothing else that would prevent the LPA from being created.
The LPA must also be signed by all of the attorneys.
As an additional safeguard, a donor can include persons to be notified of the LPA and who may raise any concerns they have about the LPA.
How and when does an LPA take effect?
In order to be valid, an LPA must be registered with the Office of the Public Guardian (the OPG). The OPG is responsible for maintaining a register of LPAs and deals with any representations about how an attorney appointed under an LPA is exercising their powers.
The Mental Capacity Act 2005 Code of Practice provides guidance for people who work with, or care for, people who lack capacity. Attorneys under an LPA are legally required to have regard to the Code of Practice.
If you have questions or concerns about lasting powers of attorney, please contact our Probate & Estate Planning team.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.