What is Lasting Powers of Attorney?
A lasting Power of Attorney (LPA) is a way of giving someone you trust, your attorney, the legal authority to make decisions on your behalf if you lose the mental capacity to do so in the future, or if you no longer want to make decisions for yourself for financial decision and or Health and Welfare decisions.
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At the time the power is given, the donor must be capable of understanding its nature and effect for it to be valid. It will be necessary to make separate LPAs, one dealing with ‘property and affairs’ and the other to cover ‘personal welfare’ decisions.
Property and Financial Affairs LPA
These are designed for you to appoint attorneys to make a range of decisions including the buying and selling of your house and other assets, dealing with your tax affairs, operating bank and building society accounts and claiming benefits on your behalf. These can be used at your direction while mentally capable and also by the attorneys if you lack capacity to make these decisions.
Health and welfare LPA
Attorneys appointed under this document can make decisions relating to your living accommodation and care, consenting to or refusing medical treatment on your behalf, and on day-to-day matters such as diet and dress. This can only be used, however, if you have lost the capacity to make decisions for yourself.
Provisions common to both forms
Although there are two separate prescribed forms, both contain certain common provisions including statements to be completed by you setting out your details, the attorneys to be appointed and how they are to act, and details of any persons to be notified on the application for registration.
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The attorneys must state that they understand their duties and obligations.
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In addition, the legislation has introduced a person known as ‘the certificate provider’, either someone who knows you well or a professional person. The certificate provider must sign the form to confirm that they have discussed the contents of the LPA(s) with you on your own (if possible) and that they can state that you understand the purpose and scope of the LPA, no undue pressure or fraud is involved in the decision to make an LPA and there are no other factors preventing the creation of the LPA.
Appointment of Attorneys
Although LPAs are detailed, they need to maintain flexibility so that:
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You may appoint more than one attorney to act together (jointly), together and independently (jointly and severally), or jointly in respect of some matters and jointly and severally in respect of others.
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If no selection is made then they must act jointly. If attorneys have to act jointly then the LPA fails if any of the attorneys die or lose capacity (and also in some other circumstances) unless a substitute attorney is appointed.
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If they can act jointly and severally then the LPA will continue even if an attorney should die, etc a replacement of successor attorney may be nominated.
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You may grant general or limited authority. If general power is granted then the attorneys may manage all your property and affairs or make all personal welfare decisions. If any restrictions or conditions are to apply then they must be clearly stated.
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Where a STEP member or other professional is appointed as a replacement or successor attorney it is recommended that their current terms and conditions of business (including fees to be charged) are discussed with and approved by you.
The attorney’s powers and duties
The attorney’s powers may be restricted and the LPA can specify that it can only come into force once you no longer have mental capacity (this applies in any case to personal welfare LPAs.
The attorneys only have limited powers to make gifts of your money or property, although the Court may authorise additional giving.
When making investment decisions, the attorney will need to take appropriate professional advice.
An attorney may refuse their appointment by completing a specified form, which will need to be sent to you and copied to the other attorneys and the court.
Attorneys must observe the Code of Practice and STEP members and other professionals who are being paid for their services are required to display.
Registration
Both types of LPA must be registered before they can be used by your attorneys and both can be registered while you still have mental capacity (unless it specifies to the contrary). Registration can be by you or your attorney. As stated previously, a personal welfare LPA can only be used when you no longer have the mental capacity to make particular decisions affecting your health and personal welfare.
The Court’s Role
Both the Court of Protection and the Office of the Public Guardian (OPG) have roles to play – the Court of Protection can determine issues such as the validity of LPAs, mental capacity (or the lack of it) and the registration and revocation of LPAs.
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The registration of LPAs is dealt with by the OPG, which will maintain a register of all LPAs. Basic information about an LPA can be made available to anyone who makes a search of the register. The OPG should also be contacted if it is suspected that abuse is taking place or the attorneys are not acting in the donor’s best interests.