A lasting power of attorney (LPA) is a legal record that lets you (the ‘donor’) select one or more people (known as ‘attorneys’) to assist you to make decisions or if this isn’t possible, to make decisions on your behalf.

An LPA will ensure that you have more power over what happens to you if you fall ill or have an accident which could consequently cause you to lack mental capacity.

There are two types of LPA and you can have either or both types:

• Health and welfare
• Property and financial affairs

LPA For Health And Welfare

This form of LPA would be used only if you lack mental capacity and it permits your attorney to make decisions about issues such as:

• Where you live (perhaps at home or in a care home)
• How you use your time
• Your diet
• Medical treatment you will or won’t receive
• Life-sustaining treatment. You must clearly state that you’ve given permission for your attorney to make decisions about any life-sustaining treatment in the LPA. Life-sustaining treatment includes ventilation to assist breathing, being fed through a tube and resuscitation.

LPA For Property And Financial Affairs

This form of LPA permits your attorney to deal with financial affairs including:

• Paying your bills
• Controlling your bank accounts
• Pensions
• Receiving revenue from or selling investments
• Buying and selling property

This variety of LPA is especially valuable if you are in pension draw down or if you own a business as a sole trader.

In the event of losing mental capacity through an accident or stoke, for example, a sole trader’s business might go into liquidation if no one else was able to access the business bank account to pay employees, suppliers and any necessary administration costs.

Another benefit of having an LPA is that you can give your attorney permission to make decisions even when you don’t lack mental capacity.  For example, you may not be able to get to the bank due to physical illness so you could give your attorney legal permission to deal with these finances on your behalf. However, you could decide to only give them power to act when you are no longer of sound mind.

How To Choose An Attorney

It is imperative that you trust a potential attorney. Most people appoint a family member or a close friend to be their attorney. The attorney must be over the age of 18 and not declared bankrupt (to act for the property and financial affairs LPA).

However, you could also consider a professional adviser such as an accountant or solicitor to be your attorney for your financial LPA but you would have to pay a fee for their services.

Practical issues such as whether you’d prefer the attorney to be geographically close to you would need to be taken into consideration.

You’d have to also be certain that the potential attorney can handle the responsibility that comes with the role. There could be huge decisions for the attorney to make so you must be confident in their judgment.

Number Of Attorneys

It is possible to choose more than one person to take on the role of attorney. Replacement attorneys can be appointed too in case one of your attorneys aren’t able to act.

Having more than one attorney means that must choose how they make their decisions:

Jointly: The attorneys must make decisions collaboratively. Because they’re acting as a unit, your LPA will be unsuccessful if one of them can no longer take on the role. It’s advisable to also appoint a replacement to ensure you still have an LPA in place.

Jointly and severally: The attorneys may act together or alone. This arrangement offers more flexibility than choosing attorneys to act jointly. Crucially, if one attorney was incapable to act, the other attorney(s) will be able to continue to act.

Jointly when making some decisions and jointly and severally when making other decisions: The attorneys may act autonomously in routine decisions, but may act jointly to decide on more significant decisions. This arrangement offers a compromise and you are able to decide which decisions the attorneys must take jointly and independently.

Instructing several attorneys to act together can ensure a more balanced and considered decision is made on your behalf, but it can also prevent a decision being made at all due to disagreements.

How To Create A Lasting Power Of Attorney

You can access all the necessary forms from the Office of the Public Guardian and send them to the address stated on the forms.

The LPA has three main sections:

The Donor’s statement – you name your attorneys and what powers you are giving. You should provide details of up to five ‘named persons’ to be informed when the LPA is registered so that these people can help look after your interests and object if they think something looks underhand.

The Attorney’s statement –  the attorney verifies that they understand their legal duties.

The Certificate Provider’s statement – someone who has known you for more than two years – perhaps a solicitor or doctor – confirms that you are not being coerced into appointing your attorneys.

To give peace of mind, you can appoint an experienced adviser to examine the documents so that you can be sure it is properly drafted and reflects your wishes.

Registering The LPA

Registration of the LPA with the Office of the Public Guardian is necessary before your attorneys can make decisions on your behalf.  Either you or your attorneys can register your LPA.  A fee (currently £82) is payable.

The Office of the Public Guardian will write to each of the attorneys and the ‘named persons’ to state the details of the LPA and anyone can object to the appointment of the attorneys. The Office of the Public Guardian will act in a safe guarding capacity, even when your LPA comes into effect.

Glossary Of Terms

Lasting Powers of Attorney
A lasting power of attorney (LPA) is a legal record that lets you (the ‘donor’) select one or more people (known as ‘attorneys’) to assist you to make decisions or if this isn’t possible, to make decisions on your behalf.

Donor
The person (you) who appoints the attorney(s).

Attorney
The person (or people) that the donor gives the legal authority to make decisions on their behalf if they lose mental capacity in the future.

Jointly made decisions (attorneys)
The attorneys must make decisions collaboratively.

Jointly and severally
The attorneys may act together or alone.

Jointly when making some decisions and jointly and severally when making other decisions The attorneys may act autonomously in more routine decisions, but may act jointly to decide on more significant decisions.

Office for the Public Guardian
Protects people in England and Wales who may not possess the mental capacity to make certain decisions for themselves.

Useful Contacts

Civil Legal Advice
gov.uk/civil-legal-advice
0845 345 4345

Money Advice Service
www.moneyadviceservice.org.uk/en
0800 138 7777

Office of the Public Guardian
www.gov.uk/government/organisations/office-of-the-public-guardian
customerservices@publicguardian.gsi.gov.uk
0300 456 0300

The Law Society
www.lawsociety.org.uk
020 7242 1222 (England)
029 2064 5254 (Wales)

The Law Society of Scotland
www.lawscot.org.uk
0131 226 7411

The Law Society of Northern Ireland
www.lawsoc-ni.org
028 9023 1614

Where Can I Get Support?

Mind
Offer services to support those with suspected mental health issues, whatever age. Find your local Mind here.

Find an advocate
An advocate is an impartial person who can both listen to you and speak for you in times of need. An advocate can be helpful in situations where you are finding it difficult to make your views known.

For information on advocacy services and groups in your area, you could contact the Mind Legal Line (here) and your local Mind. You can also contact the Patient Advice Liaison Service (PALS) (here) in England, or the Community Health Council (here) in Wales.