Lasting Power of Attorney (LPA)

This is a long-term document, of a type introduced in 2007, which appoints an attorney/ attorneys to act, during your lifetime only, whether you have mental capacity or not. It stops at death, even if the attorney/s and executor/s appointed are the same people, as they often are.

There are two types:

  • Property and Financial Affairs
  • Health and Welfare

An LPA cannot be used before it is registered, and the registration process normally takes around 8-12 weeks. Registration cannot be expedited, so the LPA should be made in advance and registered before it is needed, and then it is already activated for use if required in the future.

Most people making an LPA make one over their Property and Financial Affairs, which covers bank accounts, savings and investments, sales and purchases of their house or other property, tax and benefits. Decisions can include payment for nursing home fees, (and so, to a certain degree, the choice of care home, as this is partly a financial decision). This sort of LPA replaces the old Enduring Power of Attorney (see below)

An Attorney can be appointed to act alone, or together with others, or even as a replacement if the original person or people cannot act. Their powers can be restricted and guidance can be given.

Attorneys cannot change or write wills for the donor, except by Court Order from the Court of Protection, nor make any gifts apart from small seasonal gifts- birthday and Christmas presents etc.

An attorney must help the donor to continue to make as many of their own decisions as possible, and the donor is always presumed to have capacity to manage their own affairs. This means that the donor can carry on doing as much or as little of their own management as they wish or are able, and the attorney/s fill the gaps so that the decisions are if necessary shared. The LPA should never work as an “off-switch” removing the ability of the donor to manage their own affairs permanently- unless they are so ill that they clearly will never be able to manage personally again.

As a result, attorneys can do some things and the donor can do other things at the same time, and bank accounts may be operated using separate cheque books and even with restrictions agreed with the bank on levels of spending by the donor, to allow simple transactions to be authorised, but not more serious spending. This can be particularly helpful for dementia sufferers or others who may struggle to understand the value of money and appropriateness of bill size, and are thus vulnerable to the risk of fraud or inappropriate spending.

Health and Welfare LPAs are more restricted as the attorney can only act if the donor has lost capacity. Otherwise they must of course make their own decisions about medical treatment, housing, and other health and welfare decisions.

Health and Welfare Attorneys can be authorised to make decisions to accept or refuse life-sustaining medical treatment, or can be authorised to make other health and welfare decisions, but not that one. Most people who make a Health and Welfare LPA do so because they do want their attorney to be able to accept or refuse life-sustaining treatment on their behalf. This might however be because the donor wants their attorney to fight for their right to have further treatment or treatment of a specific type, and should never be regarded simply as the right to “switch me off” , although it is fair to say that many people who make Health and Welfare LPAs feel strongly that they do not want their life to be prolonged if they have so little capacity or are so gravely ill that they will derive no meaningful benefit from it or will suffer even longer than otherwise.

No attorney can require any medical treatment or withdrawal of treatment which is illegal, or unethical, and all medical practitioners remain obliged to act strictly in accordance with the law regarding treatment options.

There are far fewer Health and Welfare LPAs than Property and Financial Affairs LPAs, and those who do make them are more likely to appoint only their spouse or partner, rather than appointing all the family, as some decisions might be very difficult and personal indeed, and are not suitable for committee decisions, or any delays.

A Health and Welfare LPA would replace a Living Will or Advance Directive as there would be no need to consider your wishes for the future if you have appointed someone to represent you and to state at such a future time what your wishes actually are. However, many people still decide simply to make one of these documents instead, rather than asking someone else to make decisions about health and welfare for them.

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