Lasting power of attorney

There are different types of 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 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 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 entitled 'Lasting power of attorney health and welfare' and 'Lasting power of attorney - property and financial affairs'.

The 'Lasting power of attorney –- health and welfare' (LPA-HW) form 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 when you are mentally unable to do so yourself. Some examples of the things your LPA-HW 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 LPA-HW) 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

The 'Lasting power of attorney - property and financial affairs' (LPA-PA) form will allow you to authorise your attorney(s) to make decisions about your assets and financial interests if you are mentally incapable of doing so yourself. Some examples of the things your LPA-PA 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

There are, however, certain legally imposed restrictions on what your attorney(s) may do on your behalf under the authority of an LPA. Some examples of the things your LPA attorney(s) will not have the authority to do are:

• Consent to place a child up for adoption or consent to the adoption of a child
• Consent to you having sexual relations
• Give you medical treatment for a mental disorder 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

An LPA is not valid unless it is registered with the Office of the Public Guardian (OPG). Your attorney(s) will therefore not have the authority to act on your behalf until the LPA is registered. Both the LPAs can be registered 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 LPA-HW once you are no longer mentally able to make those decisions for yourself. On the other hand, the LPA-PA 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.

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 any attorney appointed under an LPA. These safeguards are:

• Attorneys have no authority unless an LPA is registered. This registration process acts as a safeguard because certain people have the right to object to the registration.
• Those intending to register an LPA must give notice of their intention to the 'people to be told' listed in the LPA. This is so they have the chance to object.
• An LPA must have at least one certificate from an independent person, known as a 'certificate provider', confirming that the person who is giving the LPA authority (the 'donor') understands what he or she is doing and has not been influenced or defrauded.
• LPA attorney(s) must follow the LPA Code of Practice, which provides guidance on the Mental Capacity Act 2005. If they do not, 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 look into the matter and decide what action should be taken.
• Donor's can place restrictions in the LPA about what they do and do not want their attorney(s) to be able to do.

As long as you have the mental capacity to make decisions for yourself, you may revoke your LPA.

For more information, visit the Court of Protection.

For more information, visit the Office of the Public Guardian.