Lasting power of attorney

Lasting power of attorney

There are different types of power of attorney (What is a power of attorney?).

A lasting power of attorney (LPA) is used in cases where you lack the mental capacity to act independently, due to factors such as illness, an accident or the onset of conditions like dementia.

You can only create your LPA whilst you are still mentally capable of making your own decisions. By planning ahead and making an LPA, you are able to give your instructions whilst you are of sound mind, in anticipation of possibly not being able to do so in the future.

Since 1 October 2007, LPAs replaced the enduring power of attorney (EPA) in England & Wales. You can no longer create new EPAs, although documents signed before 1 October 2007 can still continue to be registered. For more information, read the section on Enduring power of attorney.

Types of lasting powers of attorney

There are two separate types of LPA: one for your property and financial affairs and one for your health and welfare. These LPAs are created by completing the LPA-instrument forms titled 'Lasting power of attorney for health and welfare' and 'Lasting power of attorney for property and financial affairs'.

Lasting power of attorney for health and welfare

The 'Lasting power of attorney for health and welfare' (LP1H) allows you to authorise your attorney(s) to make decisions about your social and health care needs. It will enable them to look after your needs on a personal level but only when you are mentally unable to do so yourself. Some examples of the things your LP1H attorney(s) may do are:

• Decide where you live
• Make day-to-day decisions, such as what you will eat or what clothes you will wear
• Make decisions about what medical care you will receive, including (if you agree to it in the LP1H) whether or not you will receive life-sustaining treatment
• Decide when, where and whether you will go on holiday
• Decide what social activities you might participate in

Lasting power of attorney for property and financial affairs

The 'Lasting power of attorney for property and financial affairs' (LP1F) will allow you to authorise your attorney(s) to make decisions about your assets and financial interests. With this document you have the choice to authorise them to start acting for you irrespective of whether or not you still have the mental capacity to do so yourself, or only once you do become mentally incapable. Some examples of the things your LP1F attorney(s) may do are:

• Open, close or operate bank accounts
• Claim and receive on your behalf all pensions, benefits, allowances, services, financial contributions, repayments and rebates
• Make all tax returns and adjust and settle any tax claims
• Pay your household expenses
• Buy, lease and sell property
• Pay for private medical care and residential care costs

Restrictions to attorney's authority

There are certain legally imposed restrictions on what your attorney(s) may do on your behalf under the authority of an LPA. For example your LPA attorney(s) can't:

• Consent to place a child up for adoption or consent to the adoption of a child
• Consent to you having sexual relations
• Give or consent to you being given medical treatment for a mental disorder if your treatment is regulated by Part 4 of the Mental Health Act 1983
• Vote on your behalf
• Consent to you entering into a marriage or civil partnership
• Consent to you obtaining a decree of divorce or dissolution of a civil partnership on the basis of two years' separation
• Make your Will
• Act as your litigation friend

When the LPA comes into effect

An LPA is not valid and your attorney(s) won't have the authority to act on your behalf unless it is registered (Lasting power of attorney) with the Office of the Public Guardian (OPG). Both the LPAs can be registered as soon as it is properly signed and before you lose the mental capacity to act. Upon applying for registration, there is a 4-week waiting period. It is wise, therefore, to register before you lose the mental capacity, in order to avoid the possibility of your attorney(s) being unable to act on your behalf because they are still awaiting registration.

However, even after registration, your attorney(s) will only have the authority to act under your LP1H once you are no longer mentally able to make those decisions for yourself. On the other hand, the LP1F can take effect immediately upon registration, even if that is before you lose the mental capacity to act for yourself, provided this is specified in the LPA itself.

Safeguards

It is very important that you only appoint someone you trust to act as your attorney(s). An LPA is a very powerful document.

There are a number of safeguards in place to help prevent abuse of the system by attorneys appointed under an LPA. These safeguards are:

• Attorneys have no authority to act unless the LPA is registered with the Office of the Public Guardian (OPG).
• Those intending to register an LPA must give notice of their intention to the 'people to notify' (if any) listed in the LPA. This is so they have the chance to object.
• An LPA must have a certificate from an independent person (the 'certificate provider') confirming that the person (the 'donor') who is giving the LPA understands what he or she is doing and has not been influenced or pressurised to make the LPA.
• LPA attorneys must follow the LPA Code of Practice, which provides guidance on the Mental Capacity Act 2005. If they don't, and neglect their duties, they can be found guilty of a criminal offence with possible imprisonment.
• If any evidence is presented to the OPG of LPA attorneys not looking after the donor's best interests, the Public Guardian will take appropriate action.
• Donors can give their attorneys instructions in the LPA specifying what they do and don't want their attorney(s) to do.

Signing an LPA

An LPA must be signed by you (the donor) in the presence of one witness. If you're physically unable to make a signature, someone else can sign it on your behalf – in this case you'll need 2 witnesses.

As soon as possible after that, the certificate provider must sign the certificate in the LPA form. Then each attorney must sign in the presence of a witness.

Any witnessing of signatures via video calls (e.g. Skype, Zoom, Facetime, etc) will not comply with the strict signature requirements for LPAs. Electronic signatures are also not currently allowed.

Revoking an LPA

As long as you have the mental capacity to make decisions for yourself, you may revoke (How to revoke a power of attorney) your LPA.