Lasting power of attorney (LPA) is a legal document that allows you to nominate a person or persons who can make decisions and act on your behalf should you be unable to in the future.
Setting up a Lasting power of attorney can give you peace of mind that someone you trust can be in charge of your affairs in the future if needed. An LPA gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions.
What is Lasting power of attorney?
There are two types of LPA:
- Health and welfare LPA – gives the nominated attorney the legal authority to make decisions on behalf of someone else, such as where they should live or if they should see a doctor.
- Property and financial affairs LPA – gives the appointed attorney the legal authority to deal with third parties such as banks or the local council.
You can choose to set up one type of LPA or both, depending on your needs.
Anyone over the age of 18 who has the mental ability (known legally as ‘mental capacity’) to make financial, property and medical decisions for themselves, can set up a Lasting power of attorney. A health and welfare LPA can only be used if you can’t make your own decisions, but you can appoint someone to look after your property and finances at any time.
The person who is given power of attorney is known as the “attorney” and must be over 18 years old. The person who is nominating an “attorney” is known as the “donor”.
Understanding ‘mental capacity’
Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity, you must understand the decision you need to make, why you need to make it, and the likely outcome of your decision.
Mental incapacity, where a person is unable to make decisions for themselves, can be due to several reasons such as late-stage dementia, a severe stroke, a brain injury, a mental health illness or unconsciousness due to an anaesthetic or an accident.
However, just because a person has one of these health conditions does not always mean they lack the mental capacity to make a specific decision for themselves. It could be that whilst they lack the capacity to make more complex decisions (for example, regarding financial issues) they still can have the capacity to make other decisions (for example, how to dress and what to eat.)
Mental incapacity is normally defined if you are unable to:
- understand the information given to you relevant to the decision
- retain the information given to you for long enough to be able to make the required decision
- use or weigh up all your options before making your decision
- communicate your decision (whether by talking, using sign language or any other means).
If you lose mental capacity, the Mental Capacity Act 2005 is there to protect you and your rights.
Deciding on the need for an LPA
A power of attorney can help you with:
- Temporary situations – for example, you’re in hospital or abroad and need help with everyday tasks such as paying bills.
- Longer-term situations – for example, you want to plan for the unexpected or have been diagnosed with dementia and might lose the mental capacity to make your own decisions in future.
Only the person who is the “donor” can decide if an LPA is required. It is generally wise and prudent for all adults to set up an LPA because we never know what tomorrow will bring.
A health and welfare LPA is the most common type of LPA used, particularly when dealing with elderly loved ones affairs. As a health and welfare LPA can only come into effect if the “donor” loses mental capacity, it is generally viewed as a risk-free and sensible legal document that one can set up at any stage of life.
How to choose an attorney for an LPA
Deciding which person or persons should be your nominated ‘attorney’ in an LPA is not a decision to be taken lightly. While LPAs can be revised at any time, it is still a decision that needs considerable thought.
It is common for elderly people to nominate a younger family member, for example. In this situation it is a wise choice for most as an attorney should be someone who:
- you can completely trust to make decisions with your best intentions at heart.
- is fit and healthy and likely to have mental capacity in the future when you, the ‘donor’, may not. (This is why elderly people often choose younger relatives).
- spends most of their time living in the UK and is contactable and available (if needed) to make urgent decisions on your behalf.
When deciding who should be your attorney in your LPA consider these attributes:
Responsible
Your attorney should be responsible and reliable. They may, after all, be looking after you if you need help in the future.
Willing
Ask the person you’d like if they’d mind. Explain what being an attorney means. They should be completely aware of what they’ll need to do.
Trusted
Trust is integral to your choice of attorney. You should be comfortable and confident that whoever you choose won’t take advantage of the situation – especially if they’re acting as a property & financial LPA attorney.
Values
An attorney doesn’t need to have the same values you do – religious, political, or otherwise. But they should know and respect yours and use them to guide their decisions.
Kind
Your attorney should always have your best interests at heart. So, choose someone who really cares about you and wants the best for you.
Registering lasting power of attorney
Setting up an LPA is mostly a form-filling exercise and you can do it yourself, but to ensure it is effective you need to get it right. As it is a legally binding document it is advisable to use a solicitor who can complete the paperwork and register the LPA on your behalf. Solicitors will usually do this for a small fee.
You can get an overview of LPAs on the Government website here and you can also find a detailed guide on how to make and register your lasting power of attorney with this Government-produced downloadable PDF.
Reviewing and updating an LPA
It’s generally recommended to review and, if necessary, update an LPA every few years or whenever a significant life event occurs. It’s essential to ensure that the document accurately reflects the donor’s current wishes and circumstances.
An LPA should be updated if there are:
- Changes in personal circumstances: If the donor’s personal circumstances change, such as a change in marital status or a change in their financial situation, they may wish to update their LPA to reflect these changes.
- There is a change in preferences: The donor’s wishes or preferences regarding their financial, health, or welfare matters may change over time.
- Change in attorney’s circumstances: If any of the appointed attorneys become unable or unwilling to act on behalf of the donor.
- Legal changes: Occasionally, there may be changes in the law or regulations governing LPAs.
In conclusion
If you are setting up an LPA for a loved one and are considering the type of care that they may need, Country Cousins can help you. We have been providing live-in care to people across the UK for over 60 years. Whether its support with daily living, or care needed for a health condition, live-in care at home can be the perfect solution.
If you would like to find out more, get in touch today. Our friendly team is available to take your call on weekdays between 8am and 6pm on 01293 224706. Alternatively, fill in our online enquiry form and we will be in touch soon.
Download our Lasting Power of Attorney Guide
Having matched clients with experienced carers for over 60 years, we have a wealth of knowledge that can help families get the information they need to make the right decision when it comes to long-term care. This handy downloadable guide talks through the different types of power of attorney and how to put one in place.
