What is a Lasting Power of Attorney?
An LPA is a legal document that you (the Donor) (or someone on your behalf) complete using a specific form. It allows you to choose someone now (the Attorney) that you trust to make decisions on your behalf about things such as your property and financial affairs or health welfare at a time in the future when you no longer wish to make those decisions or you may lack the mental capacity to make those decisions.
Sometimes people wish to plan ahead and set out in advance what they would like to happen should they become unable to make decisions for themselves in the future.
Sometimes people have not planned ahead and it is the duty of their children or relatives to recover an unpleasant situation. If the Donor can still make decisions but it is getting more difficult there is no time to waste. A Donor HAS TO HAVE MENTAL CAPACITY to grant a Lasting Powers of Attorney; ie. understand what they are doing and what they are signing.
There are two types of LPA
• A property and financial affairs LPA is for decisions about finances, such as selling the Donor’s house or managing their bank account; and
•A health and welfare LPA is for decisions about both health and personal welfare, such as where to live, day-to-day care or having medical treatment.
An Attorney is appointed to make decisions as if they were the Donor themselves. An Attorney must act in the Donor’s best interests.
Who can make an LPA?
Anyone aged 18 or over, with the capacity to do so, can make an LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make an LPA jointly with another person; each person must make his or her own LPA.
Parties to an LPA
is someone who makes an LPA appointing an Attorney(s) to make decisions about his/her health and welfare, property and financial affairs or both.
is the person(s) chosen to make decisions about either health and welfare or property and financial affairs or both.
A Replacement Attorney
is the person nominated to replace the Attorney if that Attorney is no longer able to act on behalf of the donor
A Named Person
is someone chosen by the Donor to be notified when an application is made to register their LPA. They have the right to object to the registration of the LPA if they have concerns about the registration.
A Certificate Provider
must confirm that the Donor understands the LPA and that the Donor is not under any pressure to sign it.
is someone who signs to confirm that they witnessed: the Donor signing and dating the LPA form; or the Attorney(s) signing and dating the LPA form.
The LPA form is made up of three parts:
Part A – The Donor’s Statement
This is where you give your details, details of who you want to appoint to make decisions for you in the future, and how you want them to act on your behalf. You can provide the names of anyone you wish to be notified (named persons) when the LPA is registered with the OPG.
Part B – The Certificate Provider’s Statement
Only certain people can be certificate providers. The certificate provider is someone who must speak with you privately to satisfy themselves that you understand the nature of the document and that there has been no fraud or undue pressure placed upon you.
Part C – The Attorney’s Statement
Everyone you choose as an Attorney will need to provide their personal details and confirm that they understand their legal duties should they need to act as your Attorney.
Registration of an LPA
An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. An unregistered LPA will not give the Attorney any legal powers to make a decision for the Donor. The Donor can register the LPA while they have capacity, or the Attorney can apply to register the LPA at any time.
The Mental Capacity Act 2005
The Mental Capacity Act 2005 for England and Wales provides a framework to empower and protect people who may lack capacity to make some decisions for themselves. It makes it clear who can take decisions in which situations, and how they should go about this. It also allows people to plan ahead for a time when they may lack capacity. It will cover major decisions about someone’s property and affairs, healthcare treatment and where the person lives, as well as everyday decisions about personal care (such as what the person eats), where the person lacks capacity to make those decisions themselves.
Court of Protection
The court of protection is a specialist court for all issues relating to people who “ALREADY” lack capacity to make specific decisions. The Court makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to do so.
If you know or care for someone who no longer has the mental capacity to make decisions about their own personal finance, we would be happy to guide you through the complex process of applying to the court of protection so that you (and/or someone else) can make decisions for them.