What is a Lasting Power of Attorney (LPA)?

Created: 12/11/2024

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 someone they trust (called the "attorney") to make decisions on their behalf, should they become unable to do so themselves in the future. This could happen due to a variety of reasons, such as illness, injury, or mental incapacity. LPAs are vital tools for safeguarding an individual’s interests when they are no longer able to manage their personal, financial, or health matters independently.

The Different Types of Lasting Power of Attorney

In the United Kingdom, there are two main types of LPAs: Property and Financial Affairs LPA and Health and Welfare LPA. Each type covers different areas of life and grants distinct powers to the appointed attorneys.

Property and Financial Affairs LPA - This type of LPA allows the attorney to make decisions about the donor’s financial matters. This could include managing bank accounts, paying bills, collecting income (e.g., wages or pensions), buying or selling property, and dealing with investments. The Property and Financial Affairs LPA can be used as soon as it is registered (with the donor's consent), even if the donor still has mental capacity. For example, if the donor is temporarily incapacitated, perhaps due to illness or an accident, the attorney can step in and handle their finances.

Importantly, the attorney is required to act in the best interests of the donor and cannot use the power for personal gain unless expressly authorized to do so. Restrictions or conditions can be included in the LPA to limit the powers the attorney has. For instance, the donor may specify that the attorney can only act under certain circumstances or with the consent of other people (such as a family member or legal advisor).

Health and Welfare LPA - The Health and Welfare LPA allows the attorney to make decisions about the donor’s health care and personal welfare. These decisions could range from choosing medical treatments and deciding where the donor should live, to making decisions about day-to-day care needs. The Health and Welfare LPA can only be used when the donor has lost mental capacity, meaning they are no longer able to make or communicate decisions for themselves.

The attorney can also be given the authority to make decisions about life-sustaining treatment. This is a crucial aspect, as it can prevent family members from having to make difficult decisions in an emotionally stressful time. The donor may wish to specify in advance their preferences regarding life-sustaining treatment, such as whether they would want to receive such treatment if they were in a coma or unable to communicate their wishes.

Why is a Lasting Power of Attorney Important?

An LPA provides protection and control for the donor in the event of incapacity. Without an LPA in place, if an individual becomes mentally incapable of managing their affairs, their loved ones may have to apply to the Court of Protection to be appointed as their legal "deputy" to make decisions on their behalf. This process can be costly, time-consuming, and emotionally difficult, especially during an already stressful time. By contrast, creating an LPA ahead of time is relatively straightforward and ensures that the donor’s wishes are clearly outlined and legally binding.

An LPA also provides clarity about who will be making decisions for the donor. It can prevent family disputes or disagreements about who should take on the responsibility of managing affairs. By selecting an attorney who is trusted and understands the donor's values and preferences, the donor can have peace of mind knowing their decisions will be respected.

The Benefits of a Lasting Power of Attorney

Ensures Decisions Are Made by Trusted Individuals - One of the main benefits of an LPA is that it allows the donor to choose someone they trust to make decisions on their behalf, rather than leaving those decisions to be made by others, such as distant relatives or legal authorities. This provides reassurance that decisions will be made according to the donor’s wishes and values.

Prevents the Need for a Court of Protection Application - Without an LPA, if a person loses mental capacity, family members may need to apply to the Court of Protection for a deputyship order. This legal process can be lengthy and expensive, and the appointed deputy might not be the person the donor would have chosen themselves. The deputyship process also involves regular reporting to the court, adding a layer of complexity. An LPA allows individuals to avoid this process, ensuring that their affairs are managed smoothly without the involvement of a court.

Gives Peace of Mind - Having an LPA in place provides peace of mind for both the donor and their family. The donor knows that if they lose the ability to make decisions, their affairs will be in the hands of someone they trust. For family members, it eliminates the potential for conflicts and confusion about who should be in charge of making decisions for the donor.

Flexibility and Control - The donor can specify the powers and limits of the LPA. They may choose to allow the attorney to act immediately after the LPA is registered, or they may require certain conditions to be met before the attorney can act. The LPA can also be tailored to suit the donor’s preferences, and the donor can change or revoke the document at any time while they still have mental capacity.

How to Create a Lasting Power of Attorney

Creating an LPA involves a formal process. The donor must complete specific forms for both types of LPA and sign them in front of a witness. The forms must then be registered with the Office of the Public Guardian (OPG), which oversees the process. Once registered, the LPA is legally valid.

The donor must also choose their attorneys carefully, as they will be given significant authority over important matters. The donor can appoint more than one attorney and decide whether they will act together or independently. It is also recommended that a replacement attorney be named in case the primary attorney is unable or unwilling to act.

Conclusion

A Lasting Power of Attorney is a vital tool for anyone who wants to ensure their affairs are handled according to their wishes should they lose the ability to make decisions for themselves. By setting up an LPA, individuals can safeguard their financial, health, and welfare matters, giving them peace of mind and ensuring their best interests are protected. Whether it’s managing finances or making healthcare decisions, an LPA allows the donor to maintain some level of control over their future, even if they are unable to manage those decisions personally. Given the growing aging population and the increasing prevalence of conditions that can impair mental capacity, setting up an LPA is an important step in planning for the future.