Power of attorney is a legal document that gives someone else the legal authority to act on your behalf, and make decisions for you. If you’re not able to make decisions for yourself, or unable to perform certain tasks yourself, you can give someone else power of attorney to do those things for you. In ordinary power of attorney, you can grant someone the authority to do this as long as you still have the mental capacity to make decisions yourself. For instance, you might give someone ordinary power of attorney temporarily if you go into hospital, or if you’re mobility-impaired and want someone to act for you at the bank or post office.
Lasting power of attorney (LPA) is different, in that it gives another person or multiple people the authority to make decisions and act on your behalf even if you no longer have the mental capacity to supervise them.
For instance, someone might give lasting power of attorney to another person if they themselves are diagnosed with a degenerative disease such as Alzheimer’s, or any other health condition that might reduce their capacity to make decisions about their welfare in the future.
When you give someone lasting power of attorney, it empowers them to make two different kinds of decisions for you: decisions about your finances, and decisions about your health care.
Financial decisions
You can confer LPA on someone while you still have the mental capacity to make financial decisions, or you can set it up so that it comes into effect if you lose mental capacity.
With a financial LPA, you can also specify the types of decisions you want your attorney to be able to make. For instance, this kind of LPA can cover paying your mortgage and bills, paying for repairs and maintenance on your property, buying and selling property you own, and making investments. However, you might decide to give your LPA the authority to pay your mortgage and bills, and arrange for repairs and maintenance only.
Healthcare decisions
This LPA is set up so that it comes into effect only if you lose the mental capacity to make your own decisions about your health and care. When someone has your LPA for health and care decisions, they can make decisions about where you live and what you eat, the medical care you receive, and your daily routine. They can even make decisions about who you can see and the social activities you can engage in.
Because your LPA can make a wide range of decisions about your life, it’s important to make sure you give LPA to someone you trust to make decisions that are healthy and in your best interests.
Setting up an LPA is a relatively simple process; the difficult part is choosing the person who should be your LPA. You can choose your spouse or civil partner or another family member, a friend, or a professional person such as a solicitor. Your LPA must be over 18, and have the mental capacity to make their own decisions. They don’t need to be a British citizen, or live in the UK. Remember that your LPA should be someone you trust to make decisions that are in your best interests, and it’s also important that they’re comfortable making those decisions for you.
LPA forms and an information pack can be obtained from the Office of the Public Guardian. You can request that copies of the forms be mailed to you, or you can fill them in online. While you can fill the forms out yourself, you can also do this with a solicitor’s help.
Once your LPA forms are filled out, they must be signed by several people, including witnesses, the person or people you choose as attorneys, and a “certificate provider”. The person who signs the forms as the certificate provider must be someone who knows you well, or a professional such as a doctor, solicitor, or social worker, but they cannot also be one of the people you are giving LPA to. The certificate provider must confirm that you understand the consequences of giving someone LPA, and that you have chosen to make the LPA yourself.
After the certificate provider has signed the forms, your LPA must be registered with the Office of the Public Guardian before it can be used by the person you are giving LPA to.
Note that you must register your LPA yourself while you have mental capacity. Alternatively, if you had the required mental capacity when you signed the LPA forms, but lost mental capacity before registering the forms, the person you appointed your LPA can register them for you.
Making changes to an LPA
Your LPA is not written in stone once it’s set up. Providing you have the necessary mental capacity you can make changes to your LPA or end your LPA at any time, via the Office of the Public Guardian.
You can also report to the Office of the Public Guardian if you have any concerns about actions or decisions made on your behalf by your LPA.
There is no legal requirement that a solicitor or law firm be involved in appointing someone to serve as your LPA. However, they can provide you with valuable advice and help on selecting your LPA, and on the process of appointing an LPA.
It’s also important to note that the LPA is a powerful document that confers significant rights and responsibilities on the person you appoint. If you’re not sure about any aspect of the process, it’s a good idea to get legal advice to make sure you are properly protected. Legal advice can also be important if you have significant financial or other assets, or if you own a business or property.
Legal advice is also helpful if someone loses mental capacity without making an LPA, as the Court of Protection must be applied to. The Court of Protection will appoint a deputy—someone who has the legal right to make choices about the person’s welfare—who has similar rights and responsibilities as an LPA.