Lasting Powers of Attorney

What’s a Lasting Power of Attorney (LPA)?

There are two types of lasting power of attorney (LPA). One covers your property and financial affairs and the other covers your future health and welfare decisions.

The purpose of creating an LPA is to appoint people of your choice to make decisions on your behalf in the event that you become unable to make important decisions yourself.

It is important to act now because you can only create an LPA whilst you have the capacity to do so. If you were to lose your mental capacity, it would be too late to then create an LPA and your would-be attorney would have to go down the time-consuming and costly court route.

Having an LPA is the equivalent of stating your wishes in a will but during your living time only. After death, it is your will that takes over.

Mental Capacity

Your attorneys will only start making such decisions for you if you lose mental capacity, which could occur due to:

• Mental health issues
• Brain injury
• Stroke
• Drug or alcohol abuse
• Learning disability Chronic illness such as dementia

The Mental Capacity Act 2005, under which lasting powers of attorney were created, lays out the tests to use to assess whether you have lost mental capacity. These tests will usually be applied by your attorneys, although they may ask your doctor or another medical professional to assess your mental capacity for more complex decisions, such as consent for surgery.

Mental capacity can fluctuate, so you may be able to make your own decisions about some issues, but lack the capacity to make decisions about others. It is the duty of your attorneys to help you make your own decisions where possible and assess capacity on a case-by-case basis.

What are the different LPA types?

Property and Financial Affairs LPA

If you own a property or have bank accounts, the property and financial affairs type of LPA is important to consider. Have you thought about what would happen if you suddenly became unable to deal with your finances, either through illness or due to an accident?

Having this type of LPA in place means that a person or persons of your choice, who you trust, are able to assist in paying your bills, managing your bank accounts and dealing with your home.

Without a property and financial affairs LPA, your loved ones would have no access to your funds. They would instead have to apply to the court to be appointed to take control of your affairs. Such applications take a very long time and are expensive. It is important to note that anyone can apply to the court, whether it be another family member or even the Local Authority. A court application is therefore best avoided.

A property and financial LPA can be used even if you still have your mental capacity. This can be helpful if you struggle travelling to your local bank or talking to financial institutions over the telephone, then your appointed attorney can assist you to carry out your decisions.

You can select family members, friends or professionals to be your attorneys. As long as they are over 18, have mental capacity and are not bankrupt or subject to a debt relief order.

If you appoint more than one, they can act jointly, or you can empower them to make joint or individual decisions. This latter option provides far more flexibility as decisions can still be made if one attorney is not available.

Health and Welfare LPA

The health and welfare LPA can only come into force if, or once, you have lost capacity. A health and welfare LPA gives your chosen attorneys the right to make decisions about your medication, where you live and so on. The document can extend to giving your attorney the right to consent to, or refuse, life sustaining treatment on your behalf.

A health and welfare LPA enables you to set out in writing how you would like your personal care to be managed while you are incapacitated, providing guidance to your attorneys. It can also place restrictions on the powers they have that you feel may be required, like refusing medication or certain treatment, such as resuscitation after a heart attack.

How a Solicitor Can Help

A lasting power of attorney gives your chosen attorneys wide-ranging power over you and your affairs, so it is not something to be entered into lightly.

If you are considering either LPA type, do not hesitate to contact us. Our specialist private client lawyers can talk you through your requirements, helping you to decide which attorneys to choose and what sort of guidance you want to give to them. They can also ensure all the paperwork is correctly filled out and that your lasting power of attorney is properly registered and exactly reflects your wishes.