March 10, 2014

DeBrieF FACT SHEET: Lasting Powers of Attorney (LPAs)

Laura Johnson – a solicitor in our private client department – discusses the issues and considerations around Lasting Powers of Attorney (LPAs)…

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1. What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that formally appoints someone you trust to look after your property & financial affairs, and your health and welfare if you ever lose the ability to do so.

2. What are the main principles?

Your attorneys must follow the principles of the Mental Capacity Act 2005. The key principle is that your attorneys must always act in your best interests in making decisions for you when you are unable to make a decision yourself.

3. How do I choose my Attorney?

It is important to choose the right attorney. You may choose several attorneys, but they should be able to work together and make decisions in your best interests. You attorneys should be people that you know and trust.

4. What if my chosen Attorney can no longer act for me?

You can name a replacement(s) in case an attorney is unable to or no longer wishes to continue acting for you. An attorney will be unable to act if they are bankrupt or if they are your spouse and you divorce, or they are your civil partner and you terminate the civil partnership. If you are going to the effort of creating an LPA then it is prudent to include a replacement attorney, and this again should be somebody whom you know well and trust.

5. When can an Attorney act?

There are different rules for the two different types of LPAs. Once your LPA for property and financial affairs is registered then your attorneys may act whether you have capacity or not. For your health and welfare LPA, your attorneys may only act once it has been registered and a medical practitioner has certified that you no longer have capacity to act.

6. What decisions can my Attorney make?

In respect of your property and financial affairs, your attorneys may make decisions about your bank accounts, investments or even deal with selling your property. In respect of your health and welfare, your attorneys may make decisions about the medical treatment you receive, whether you move into a residential care home and you must also specifically say whether your attorneys would have authority to make decisions about life-sustaining treatment.

7. What if I change my mind?

Provided you have the mental capacity to do so, you may revoke your LPA at any time. This must be done by a formal deed and registered with the LPA.

8. What measures are in place to protect my personal interests?

An LPA must be registered with the Office of the Public Guardian. The OPG must satisfy itself that you have not been unduly influenced into entering the LPA and that you had mental capacity to create the LPA. The OPG cannot physically check this for every person who registers an LPA and so it has its own safeguarding procedures that everyone must comply with. This involves notifying a friend or relative when you apply to register the LPA and also involves a professional or close personal friend signing the LPA to certify that you fully understand the LPA.

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