Lasting Power of Attorney

What is a Lasting Power of Attorney?

An LPA is a legal document that you (the Donor) make using a special form. It allows you to choose someone now (the Attorney) that you trust to make decisions on your behalf about things such as your property and affairs or personal welfare at a time in the future when you no longer wish to make those decisions or you may lack the mental capacity to make those decisions yourself.

An LPA can only be used after it is registered with the Office of the Public Guardian.

The types of LPA

There are three different types of LPA

• a Personal Welfare LPA
• a Property and Affairs LPA

Who can make an LPA?

Anyone aged 18 or over, with the capacity to do so, can make an LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make an LPA jointly with another person; each person must make his or her own LPA.

People involved in making an LPA

Donor

A Donor is someone who makes an LPA appointing an Attorney(s) to make decisions about his/her personal welfare, property and affairs or both.

The Attorney(s)

An Attorney is the person(s) you choose and appoint, using an LPA form, to make decisions on your behalf about either your personal welfare or property and affairs or both. It is an important role and one that the person chosen has to agree to take on.

Named person(s)

A named person is someone chosen by the Donor to be notified when an application is made to register their LPA. They have the right to object to the registration of the LPA if they have concerns about the registration.The named person(s) are specified in the LPA form. Selecting people to notify of an application to register is one of the key safeguards to protect you if you make an LPA.

Certificate provider

A certificate provider is a person the Donor must select to complete a Part B Certificatein the LPA form. The certificate provider must confirm that the Donor understands the LPA and that the Donor is not under any pressure to make it. The certificate provider is another important safeguard.

Witness

A witness is someone who signs the LPA form to confirm that they witnessed:

• the Donor (the person making the LPA) signing and dating the LPA form; or
• the Attorney(s) (the person appointed by the Donor) signing and dating the LPA form.

Further information

More detailed information on the roles and responsibilities of the people listed above is available by contacting Wills Probate & Trusts.

Personal Welfare LPA

The Personal Welfare Lasting Power of Attorney

A Personal Welfare Lasting Power of Attorney (LPA) allows you to plan ahead by choosing one or more people to make decisions on your behalf regarding your personal healthcare and welfare.

These personal welfare decisions can only be taken by somebody else when you lack the capacity to make them for yourself;for example if you are unconscious or because of the onset of a condition such as dementia.

The Attorney(s) you appoint to make personal welfare decisions will only be able to use this power once the LPA has been registered and provided that you cannot make the required decision for yourself.

You can decide to give your Attorney the power to make decisions about any or all of your personal welfare matters, including healthcare matters. This could involve some significant decisions, such as:

• giving or refusing consent to particular types of health care, including medical treatment decisions; or

• whether you continue to live in your own home, perhaps with help and support from social services, or whether residential care would be more appropriate for you.

If you want your Attorney(s) to have the power to make decisions about 'life-sustaining treatment', you have to expressly give yourchosen Attorney(s)the power to make such decisions by completeing sections 6 and 12 of the LPA form.

You can also give your Attorney(s) the power to make decisions about day-to-day aspects of your personal welfare, such as your diet, your dress, or your daily routine. It is up to you which of these decisions you want to allow your Attorney to make.

This type of LPA does not allow the person(s) you have chosen (your Attorney) to make decisions about your property and affairs. If you would like someone to be able to make property and affairs decisions on your behalfyou will need to make a Property and Affairs LPA.

Property and Affairs LPA

The property and affairs Lasting Power of Attorney

A Property and Affairs Lasting Power of Attorney (LPA)allows you to plan ahead by choosing one or more people to make decisions on your behalf regarding your property and financial affairs.

You can appoint a property and affairs Attorney to manage your finances and property whilst you still have capacity as well as when you lack capacity. For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income.

This might be easier for lots of reasons: you might find it difficult to get about or to talk on the telephone, or you might be out of the country for long periods of time.

You can decide to give your Attorney(s) the power to make decisions about any or all of your property and affairs matters. This could include paying your bills, collecting your benefits or selling your house.

This type of LPA does not allow the person(s) you have chosen (your Attorney) to make decisions about your personal welfare.If you want someone to be able to make personal welfare decisions on your behalf you will need to make a Personal Welfare LPA.

Deputy Power of Attorney

A Deputy Power of Attorney is, however, more complicated than either the Personal Welfare or Property and Affairs LPA, as this covers Donors who do not have the mental capacity to understand or cannot give instructions to make an LPA.This Power of Attorney needs much more care in its construction.The DPA is designed where Donors cannot sign the document themselves and need guidance from someone outside the family unit. Further information can be obtained from this firm.

Mental Capacity Act

About the Act

The Mental Capacity Act 2005 for England and Wales provides a framework to empower and protect people who may lack capacity to make some decisions for themselves. It makes it clear who can take decisions in which situations, and how they should go about this. It also allows people to plan ahead for a time when they may lack capacity.

It will cover major decisions about someone's property and affairs, healthcare treatment and where the person lives, as well as everyday decisions about personal care (such as what the person eats), where the person lacks capacity to make those decisions themselves.

Key Principles

There are five key principles in the Act:

• Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.

• A person must be given all practicable help before anyone treats them as not being able to make their own decisions.

• Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.

• Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.

• Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

Who can make an LPA?

Anyone aged 18 or over, with the capacity to do so, can make an LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make an LPA jointly with another person; each person must make his or her own LPA.

More detailed information is available by contacting Wills Probate & Trusts.