Lasting powers of attorney for health, care and financial decisions

A Lasting Power of Attorney (LPA) is a legal document by which a person over 18 (called donors) appoints certain trusted people (called attorneys) to make financial decisions or decisions regarding their health and welfare on their behalf when they are no longer able to make those decisions for themselves.

The donor can also appoint replacement attorneys who will step in as the attorneys if the original attorneys are unable or unwilling to act at any point after the LPA has been registered.

LPAs are legally recognised in England and Wales, but may not be recognised in other jurisdictions.

There are two types of LPA:

  1. Financial decisions
  2. Health and care decisions

Each type of LPA requires a separate form to be completed and signed.

If a donor would like to include unusual or specific requirements in their LPA, they should take independent legal advice.

Mental capacity

The donor must have mental capacity in order to make the LPA. Mental capacity is the ability to make and understand the consequences of a specific decision at the time that the decision needs to be made.

A person with mental capacity has at least a general understanding of:

  • The decision they need to make
  • Why they need to make it
  • Any information relevant to the decision
  • What is likely to happen when they make it

They should be able to communicate their decision through speech, signs, gestures or other ways. It is possible for a person to have mental capacity to make some decisions but not others.

It is likely that a person lacks mental capacity if they have a problem with their brain or mind that stops their brain or mind from working properly and, as a result, which causes them to be unable to make a particular decision at the time it needs to be made.

A person is unable to make a particular decision if they are unable to:

  • Understand relevant information about the decision that needs making
  • Keep that information in their mind long enough to make the decision
  • Weigh up the information in order to make the decision
  • Communicate their decision by talking or by using sign language, pictures, blinking or squeezing a hand

Mental Capacity Act

LPAs are governed by the Mental Capacity Act 2005. The Mental Capacity Act Code of Practice sets out how attorneys must act and contains more information about mental capacity. The Mental Capacity Act Code of Practice can be found online here or a printed version can be ordered from The Stationery Office.

The attorneys can make decisions on the donor’s behalf but they must always act in the donor’s best interests.

The Mental Capacity Act Code of Practice states that attorneys must:

  • Always assume that the donor can make their own decisions unless it is established that they cannot do so
  • Help the donor to make as many of their own decisions as they can
  • Take all practical steps to help the donor make a decision
  • Not treat the donor as unable to make a decision simply because they make an unwise decision
  • Act and make decisions in the donor’s best interests when they are unable to make a decision
  • Consider whether the donor can make a decision or act in a way that is less restrictive of the donor’s rights and freedoms but still achieves the purpose

If it is unclear whether a person lacks mental capacity, advice must be taken from a professional such as a GP or a lawyer, before making an LPA.

Financial decisions LPA

A donor may wish to create a financial decisions LPA if they would like to appoint an attorney to assist with making decisions about:

  • Managing money, including opening, closing and using bank and building society accounts
  • Claiming, receiving and using benefits, pensions and allowances
  • Paying bills, including utility bills and care bills
  • Making or selling investments
  • Buying, selling or otherwise managing a home

If the donor wishes, finance and property attorneys can act on their behalf before they have lost mental capacity, but only with the donor’s permission. Alternatively, the attorneys can act only once the donor has lost capacity to make decisions for themselves.

Health and care decisions LPA

A donor may wish to create a health and care decisions LPA if they would like to appoint an attorney to assist with making decisions about:

  • Giving or refusing consent to healthcare and, in particular, life sustaining treatment
  • Staying in their own home and getting help and support from social services
  • Moving into residential care and finding a good care home
  • Day-to-day matters such as their diet, dress or daily routine

A health and care decisions attorney can only make decisions on the donor’s behalf once they have lost mental capacity.

The donor should discuss their plans to appoint particular people as their attorneys with those people prior to signing the forms, so that the donor knows they are happy to be appointed.

Before the LPAs can be used, they must be registered with the Office of the Public Guardian (OPG). It costs £110 to register each LPA with the OPG, and once registered, the LPAs are ready to be used as soon as they are needed.

If a person has lost mental capacity they cannot make an LPA and instead an application must be made to the Court of Protection, who will appoint someone else to act on their behalf.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

Briefing tags , ,