What is a Lasting Power of Attorney?

A Lasting Power of Attorney is for when you are still alive as it relates to your lifetime and would no longer apply when you pass away. An LPA is a legal document that lets you (known as the ‘donor’) choose one or more people you trust (known as ‘attorneys’) to make decisions on your behalf. You must have mental capacity to make a Lasting Power of Attorney and not be acting under undue pressure from another person. In other words, you need to understand who you are appointing to act on your behalf and what you are signing.

Giving responsibility of being your attorney to a trusted family member or friend can be reassuring knowing that they know you and your wishes should you need help in managing your day to day affairs or help liaising with doctors and carers in future. You may need their help in the event of an injury or illness, whilst living in your home, temporarily in hospital or having moved to live in a care home.

It can be a difficult conversation to have even with family members but important to have. The role of an attorney is not to be taken lightly. They have to always act in your best interest so it is really good to think about who you trust most, who is organised and capable of being your voice and advocate. If appointing more than one attorney it is important to choose people who are likely to be able to work well together.

Once the document has been completed, signed and witnessed it has to be registered with the Office of the Public Guardian (the ‘OPG’) to validate the application. Even if you do not need to make use of the LPA immediately, it's important to have it registered sooner rather than later so you can use it immediately should the need arise. Once registered by the OPG the LPA certificate is returned to you, you can choose to have your attorneys register it with your GP, banks and other financial institutions immediately or if and when needed in future.

There are two main types of Lasting Powers of Attorney in England and Wales:

A Financial Decisions LPA which authorises the attorney to deal with your property and finances. Some examples include paying bills, opening or closing bank accounts, paying for private medical and residential care or nursing home fees, and paying your mortgage or rent on your home as well as things like insuring and maintaining your property. Taking cash out of the bank for you, paying for taxis for you etc.

A Health and Care Decisions LPA, as implied by the name, is specifically related to your wellbeing. It allows your attorney to make welfare and health decisions on your behalf, if you lack mental capacity to do so yourself. Bearing in mind that even people with dementia can have mental capacity, medical professionals would not allow your attorney to make decisions on your behalf unless the medical professional assessed you as not having mental capacity, or if you were unconscious, at the time the decision needed to be made.

Importantly this LPA also gives authority to your attorney to make decisions or advocate on your behalf in discussion with social care, about where you live if your health deteriorates, and your preferred day-to-day care such as diet or whether you would want to take part in social activities. If you do not appoint an attorney these decisions would be made by a Social Worker or Care Worker.

If you did not appoint an attorney, and lacked mental capacity, decisions about your wellbeing or health would become the responsibility of the State, via a Social Worker or Medical Staff, even if your family or friends knew your wishes.

Remember, this power can only be used by your appointed attorney if you have been assessed by a medical practitioner to have lost mental capacity.

Both Lasting Powers of Attorney were made under the Mental Capacity Act 2005.

Why Make A Lasting Power of Attorney?

Why Make a Lasting Power of Attorney?

Although it is a sensitive topic to discuss, thinking about your future and what you would wish to happen should you lose mental capacity or become incapacitated due to illness is an important step in planning for your future.

Whilst we all hope to live a long and healthy life, It’s impossible to predict the future as things don’t always turn out the way we expect. Accidents and health issues can happen unexpectedly at any time in our life making it crucial to put something in place such as a Lasting Power of Attorney (‘LPA’). Creating Lasting Powers of Attorney while you are of sound mind ensures your affairs are managed by someone you trust to act in your best interests and carry out your wishes according to your instructions. Giving you peace of mind and keeping you in control.

Each utility company, bank, building society, social care team, hospital, care provider or solicitor would need to have sight of the registered Lasting Power of Attorney document that they take a copy of for their records BEFORE they will discuss your personal health, wellbeing or financial affairs with your attorney.

Even for simple payments, for example, if you are in a care home and have to attend hospital or dental appointments. The care home may need consent on your behalf to make arrangements with a taxi and to invoice your attorney to make those payments on your behalf.

By planning ahead and making a Lasting Power of Attorney you can have peace of mind that you have set out, in advance, what you would like to happen should you lose capacity to do so in the future. This therefore minimises future difficulties for you should they occur.

What Happens If You Do Not Have An LPA?

It’s a public misconception that if something happens to you and you are unable to make your own decisions either due to accident, illness or age- related issues, such as dementia, someone such as a spouse, partner or family member can step in and deal with your personal welfare and financial affairs such as advising on who to help care for you, what medical treatment you need or pay your bills. However, this is not the case. If you lack capacity, your loved ones do not have the automatic right to step in.

But my GP has spoken to my partner before

Without having appointed them your attorney, or given explicit consent your family GP may not be happy to discuss your health with your partner or your next of kin due to patient confidentiality. Although there are some exceptions to this rule and a GP may be able to share some information however, this is carried out along strict guidelines.

Your GP together with hospital staff, even in an emergency situation, are likely to follow these guidelines and may refuse to share information with your husband, wife, partner or other family. Similarly if you were living in a care home, carers and Social Workers together with banking staff and other financial institutions would not necessarily share information about you and your affairs with those nearest to you.

Furthermore, if you did not have LPAs set up, and did not have mental capacity, your partner, or family would need to apply through the Court of Protection for an appropriate order, such as a Deputyship whereby the Court of Protection appoints another person to make decisions on your behalf.

Obtaining a Deputyship is a lengthy, time consuming and costly process with ongoing accounts to be assessed and completed annually.

As a result of not having a Lasting Power of Attorney in place, in this scenario decisions would be made on your behalf by the State, via your GP, other medical practitioners, a social worker or care worker without necessarily taking your wishes into account.

Creating Lasting Powers of Attorney allows you to plan for your future with confidence. By outlining your wishes in advance, you ensure that your preferences are respected should you lose the capacity to make decisions later on in life. This proactive step helps minimize potential challenges and provides peace of mind for you and your loved ones.

Lasting Power of Attorney Registration Fees

For each separate application form you submit you must send a cheque of £82 to pay the fee for the Office of the Public Guardian to register it.

However, in some circumstances, if you are on certain benefits or receive less than £12,000 per year you can apply for a reduced fee.

Importantly, any error on the form, including a misspelt name can result a failed registration and this fee will not be reimbursed.