What is a Lasting Power of Attorney (LPA)?

Created: 12/12/2024

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows a person (known as the donor) to appoint one or more individuals (known as attorneys) to make decisions on their behalf in the event that they are unable to do so themselves due to illness, incapacity, or any other reason. The LPA is a powerful legal tool that ensures an individual’s wishes are respected even when they may no longer have the capacity to express them. It provides a way to plan for the future and to ensure that personal, financial, and healthcare decisions can be made by someone trusted.

A LPA is a crucial legal document that allows an individual (referred to as the donor) to appoint one or more trusted individuals (called attorneys) to make decisions on their behalf in the event that they become unable to do so themselves due to mental or physical incapacity. The LPA is designed to ensure that a person's wishes are respected even when they can no longer express them. It provides a mechanism for managing financial, healthcare, and personal decisions, safeguarding the donor’s interests and wellbeing.

Different Types of LPA

In the UK, there are two main types of LPAs: the LPA for Property and Financial Affairs and the LPA for Health and Welfare. Both serve distinct purposes and can be created separately or together, depending on the donor's preferences.

LPA for Property and Financial Affairs

The LPA for Property and Financial Affairs grants the attorney the power to make decisions about the donor’s finances and property. This could include managing bank accounts, paying bills, collecting pensions, selling or renting property, making investment decisions, and handling taxes. Essentially, this LPA provides the attorney with the authority to handle the donor's financial matters in a way that mirrors the donor’s preferences.

This type of LPA can come into effect immediately after it is registered, meaning the attorney can begin acting on behalf of the donor straight away with the consent of the donor. However, the donor can specify that the LPA should only be activated when they lose the capacity to make decisions themselves, such as in cases of mental impairment caused by illness or accident.

While it may sound like a straightforward process, an LPA for Property and Financial Affairs also has potential complexities. For instance, if the donor has multiple properties or investments, the attorney may need to make decisions about the sale or management of these assets. The attorney also has to follow the guidelines set by the donor, who may provide specific instructions or set restrictions regarding their finances. Importantly, attorneys under this LPA have a fiduciary duty to act in the donor's best interests, with clear responsibilities to manage funds and property carefully and transparently.

LPA for Health and Welfare

The LPA for Health and Welfare empowers the attorney to make decisions about the donor's medical care, living arrangements, and other personal aspects of their wellbeing when the donor is no longer able to do so. These decisions can range from agreeing to medical treatments and surgeries to determining where the donor should live, whether in a care home or at home with support. It can also include making decisions regarding day-to-day care, including whether the donor should receive home help or other forms of personal support.

This type of LPA can only be used when the donor has lost mental capacity and is unable to make decisions for themselves. For instance, a person with advanced dementia, a severe stroke, or any other condition that impairs cognitive ability may need someone to act on their behalf regarding healthcare choices. The donor can set out specific wishes in the LPA document, for example, preferences about life-sustaining treatments, which the attorney must follow.

Additionally, the Health and Welfare LPA can include decisions about end-of-life care, such as whether or not to continue life support in the event of terminal illness or injury. This makes it a particularly significant and sensitive aspect of planning for the future.

Key Features of Lasting Power of Attorney

One of the most distinctive aspects of the Lasting Power of Attorney is its lasting nature. Unlike previous forms of power of attorney, which were automatically revoked if the donor lost mental capacity, an LPA remains in force even if the donor becomes mentally incapacitated. This ensures that the donor’s preferences can continue to be honored over time, even as they face challenges to their decision-making abilities.

Importantly, the donor can choose to include restrictions or guidance on how the attorney should make decisions. For example, they might specify how their finances should be managed or provide guidance on medical treatment preferences, such as whether they want certain treatments to be provided or withheld under specific circumstances. This helps ensure the LPA reflects the donor's values and beliefs.

Creating an LPA

Creating a Lasting Power of Attorney involves several steps. The donor must be over the age of 18 and mentally capable when signing the document. The LPA must be signed by the donor, the attorney(s), and a certificate provider; a person who confirms that the donor understands the nature of the document and is signing voluntarily. This can be a Social Worker or another professional who is familiar with the donor’s situation. Or it can be a someone who has known the donor personally for at least 2 years, such as a friend, neighbour, colleague or former colleague. After signing, the LPA must be registered with the Office of the Public Guardian (OPG) to be legally valid. This registration process typically takes several weeks or months and comes with a registration fee.

Once the LPA is registered, the attorney can begin acting on the donor's behalf according to the terms laid out in the document. It is important to note that the donor has the right to revoke or change the LPA as long as they remain mentally capable. If the donor passes away, the LPA becomes void, and the executor of their will takes over their affairs.

Why is an LPA Important?

An LPA is important because it allows individuals to plan for their future while they are still mentally capable. It ensures that their financial and healthcare decisions will be managed by someone they trust if they become unable to make those decisions themselves due to age, illness, or injury. Without an LPA in place, a family member or loved one may have to apply to the courts for a Deputyship order to manage the donor’s affairs, a process which can be lengthy, expensive, and complex.

Furthermore, an LPA provides peace of mind, knowing that trusted individuals are empowered to act in the donor's best interests, which can significantly reduce stress and uncertainty in the event of serious illness or incapacity.

Conclusion

In summary, a Lasting Power of Attorney (LPA) is a fundamental legal tool that helps individuals plan for a future where they may no longer be able to manage their own financial and healthcare decisions. It allows the donor to appoint one or more trusted individuals to act on their behalf, ensuring their wishes are respected. By understanding the different types of LPAs, the process of creation, and the protections in place, individuals can safeguard their autonomy and well-being even in the face of future uncertainty.