Lasting Power of Attorney (LPA)

With an increasingly elderly population, more of us are becoming aware of the possible effects of Alzheimer's, Dementia, Strokes and other conditions that can cause loss of mental capacity.

As a result, many people are concerned about what will happen to them in later life in the event that they cannot make decisions for themselves through loss of mental capacity.

A Lasting Power of Attorney (LPA) provides the opportunity for an individual to have some say in their future care, and to state what type of medical treatment they would want or not want, as well as appointing someone to look after their property and finances. A Lasting Power of Attorney enables the person making it (the donor) to give someone else (the attorney) the legal right to deal with his or her affairs.

An LPA can be put in place so that it only activates in the eventuality that you are medically diagnosed as having lost mental capacity, and not before.

By creating an LPA in advance you are able to choose someone who you trust to deal with your affairs.

If you do not have an LPA in place in advance, and later lose mental capacity, then someone will need to apply to the Court of Protection to become legally entitled to manage your affairs. Critically, this may not be the person you would have chosen yourself.

Two types of LPA are available:

Property and Affairs LPA - this gives the attorney the authority to deal with the donor's finances and property.
Personal Welfare LPA - this allows the attorney to make decisions relating to the donor's healthcare, welfare and in some cases end of life treatment.

LPAs were created so that even those people who lack capacity should be empowered to have a say in decisions about matters which affect their lives.

It is possible to appoint one person to act as attorney, or to name more than one person and specify different areas that each can make decisions about. It is also possible to specify that decisions should be made jointly by both attorneys. LPAs offer a great deal of flexibility in the ways in which they can be set up, offering a large degree of control to the donor.

Property and Affairs Lasting Power of Attorney

A property and affairs LPA can be set up either:

To come into effect as soon as it is registered, or
In the event that the donor loses mental capacity in the future

It grants the attorney the authority to deal with the following areas, (unless restricted by the donor at the time of taking out the LPA):

Bank accounts and other finances
The donor's taxes
Claiming, receiving and using all benefits (on the donor's behalf)
Receiving income or inheritance for the donor
Buying and selling property
Making limited gifts on the donor's behalf

Restrictions exist in some of these areas aimed at protecting the donor, for example, gifts are limited to customary gifts the donor may have made (eg. birthday gifts to relatives) and must not be unreasonable in size given the donor's financial circumstances.

Critically, an attorney is under an obligation to act in the donor's interests at all times, and safeguards exist to ensure this.

Personal Welfare Lasting Power of Attorney

A personal welfare LPA can only be used once it has been registered with the Office of the Public Guardian and also, critically, after the donor has lost mental capacity.

It offers broad scope for making decisions in a number of areas:

Where the donor should live and who they should live with
The donor's day to day care, including diet and dress
Consenting to or refusing medical examination and treatment on the donor's behalf
Assessments for and provisions of community care services
The donor's personal correspondence and papers
Complaints about the donor's care or treatment

LPAs are tailor made to the individual. At the time of creating the LPA the donor can modify the scope of the power, for example, the donor may not wish their attorney to have power to decide who the donor has contact with. This can be stated in the LPA at the outset so that it is clear which decisions the attorney is allowed to make.

An attorney may only consent to, or refuse, life-sustaining or life-prolonging treatment on behalf of the donor if expressly authorised to do so in the LPA. The attorney is duty bound to act in the best interests of the donor at all times, and in cases of end of life treatment the attorney should consult with carers and family members who have an interest in the donor's welfare. (No attorney can be given power to demand that treatment be given if the medical staff in charge of the donor's care do not believe it to be necessary.)

An LPA provides people with the potential to exercise a much greater degree of control over their future care in the event of loss of mental capacity.

Creating a personal welfare LPA needs careful consideration beforehand and may involve consultation with family members and medical practitioners.

As Lasting Powers of Attorneys can be complex, specialist legal advice should always be sought.