If you lose mental capacity, for example in an accident, your loved ones will need to apply through court to become a “deputy”, to have the authority to manage your affairs. This can be a long and lengthy process. You can avoid this situation by putting in place a Lasting Power of Attorney (LPA) which is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and can’t make your own decisions (you ‘lack mental capacity’). You must be 18 or over and have mental capacity (the ability to make your own decisions) when you make your LPA.
There are 2 types of LPA:
• health and welfare
• property and financial affairs
You can choose to make one type or both but it is recommended that you make both.
Health and welfare lasting power of attorney
You can use this LPA to give an attorney the power to make decisions about things like:
• your daily routine, for example washing, dressing, eating
• medical care
• moving into a care home
• life-sustaining treatment
It can only be used when you’re unable to make your own decisions.
One very important decision has its own section in a health and care LPA. You can choose whether your attorneys or your doctors should make decisions about accepting or refusing medical treatment to keep you alive, if you can’t make or understand that decision yourself.
Property and financial affairs lasting power of attorney
You can use this LPA to give an attorney the power to make decisions about money and property for you, for example:
• managing a bank or building society account
• paying bills
• collecting benefits or a pension
• selling your home
It can be used as soon as it’s registered, with your permission.
You choose whether your attorneys can act for you as soon as the LPA is registered or only if you can no longer understand and make decisions
You don’t have to own your own home or have a lot of money to make an LPA for financial decisions. For example, if it’s hard to manage your bank account or bills alone, you may want someone to help.
You don’t have to have complex health or care problems to make an LPA. It’s a way of planning for your care in case you can’t make decisions for yourself in future.
People involved in your LPA
You (the donor) need to choose people for your LPA.
Attorneys: those that will act on your behalf.
Certificate Provider: a person who will certify that you know and understand what you are doing.
Witnesses: an impartial person must witness you and your attorneys signing your LPA. You can’t witness your attorneys’ signatures and they can’t witness yours.
People to notify: You have the option to name up to 5 people to notify when an LPA is registered.
Registering your LPA
Before you can use your LPA, you must register it with the Office of the Public Guardian (OPG). It costs £82 to register your LPA so that it’s ready to use.
Who can be a donor?
An LPA is for just one person. You can make an LPA if:
you are at least 18 years old
you have the mental capacity to do so
‘Mental capacity’ means the ability to make and understand a specific decision at the time it needs to be made.
Most people can make an LPA. However, there could be complications because of:
residency – if you live or have property outside England and Wales
bankruptcy – if you are bankrupt or subject to a debt relief order and want to make an LPA for your financial decisions
Who can be an attorney?
In legal terms, an ‘attorney’ is a person who’s allowed to act on behalf of someone.
Attorneys don’t need to be solicitors. Most people choose family members
friends and other people they trust with no legal background. If an attorney is not a professional, the important thing is that you know each other well and they respect your views and will act in your best interests.
You can ask anyone with mental capacity aged 18 or over to be your attorney, including:
your wife, husband, civil partner or partner
a family member
a close friend
a professional, such as a solicitor
What attorneys must do
Attorneys can make some decisions on your behalf, but they can’t do as they please. They always have to act in your best interests.
The Mental Capacity Act Code of Practice goes into this much more fully. It sets out five basic principles an attorney has to follow when working out whether and how to act on your behalf:
Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
Attorneys always have to follow these principles.
You can find the Mental Capacity Act Code of Practice at www.gov.uk/opg/mca-code
If you’ve chosen two or more attorneys, you must state how they should make decisions on your behalf.
jointly and severally
jointly for some decisions, jointly and severally for other decisions
Most people choose ‘jointly and severally’ because it is the most flexible and practical way for attorneys to make decisions.
Jointly and severally (attorneys act either together or individually)
Your attorneys can make decisions on your behalf on their own or together.
Any action taken by any attorney alone is as valid as if they were the only attorney. It’s up to your attorneys to choose how they make decisions but they must always act in your best interests.
Most people choose this option because:
attorneys can make simple or urgent decisions quickly and easily, without asking your other attorneys
if an attorney can no longer act, the LPA won’t be cancelled
Jointly (attorneys agree every decision unanimously)
Your attorneys must always make all decisions together. They must agree unanimously and they must all sign any relevant documents.
Choose this option if you want your attorneys to agree on every decision, whether it’s big or small. If your attorneys can’t all agree on a decision, it can’t be made.
Alternatively, you can choose that your financial LPA will take effect – and your attorneys will be able to act for you – only when you don’t have mental capacity.A financial LPA can usually be used as soon as it’s registered. If you have mental capacity, you can tell your attorneys to start using the LPA straight away. If you then lose mental capacity, they can carry on using the LPA.
As soon as my LPA has been registered (and also when I don’t have mental capacity)
Mark this box with an ‘X’ if you want your attorneys to help you with your finances while you have mental capacity.
For example, if you can’t leave the house or it’s hard to talk to your electricity supplier, you might ask your attorneys to deal with the bank or pay bills. You could ask your attorneys to act for you if you are away – for example, on holiday.
Banks and other financial institutions sometimes want written confirmation that a donor does not have mental capacity before they’ll recognise an attorney’s authority to act under an LPA.
Ask the donor’s GP, care co-ordinator, social worker or care home staff about a mental capacity assessment.
life-sustaining treatment (health and care LPA only)
You have two options:
option A – I give my attorneys authority to give or refuse consent to life-sustaining treatment on my behalf
option B – I do not give my attorneys authority to give or refuse consent to life-sustaining treatment on my behalf.
Life-sustaining treatment: definition
‘Life-sustaining treatment’ means care, surgery, medicine or other help from doctors that’s needed to keep someone alive.
Life-sustaining treatment can include: • a serious operation, such as heart bypass surgery • chemotherapy, radiotherapy or another cancer treatment • an organ transplant • artificial nutrition or hydration (food or water given other than by mouth)
People to notify (optional)
You can choose up to five people to notify about your LPA when it’s about to be registered.
These should be people who know you well and would be willing to raise concerns about your LPA. They can object to the LPA if they think you were under pressure to make it or if they think fraud was involved.
A certificate provider is an impartial person who confirms that you understand what you’re doing and that nobody is forcing you to make an LPA. They must confirm that:
you understand the significance of the LPA
you have not been put under pressure to make it
there has been no fraud involved in making the LPA
there is no other reason for concern
Who can be a certificate provider?
A certificate provider must be at least 18 years old and either:
a friend, colleague or someone you’ve known well for at least two years – they must be more than just an acquaintance
your doctor or lawyer or someone with the professional skills to judge whether you understand what you’re doing and are not being forced to make an LPA
‘People to notify’ can be certificate providers.
People who can’t be a certificate provider
The certificate provider must not be:
an attorney or replacement attorney for the LPA
an attorney or replacement attorney in any other LPA or enduring power of attorney (EPA) that you’ve already made
a member of your or your attorneys’ families – including wives, husbands, civil partners, in-laws and step-relatives
an unmarried partner, boyfriend or girlfriend of yours or of any of your attorneys – whether or not they live at the same address
your business partner or one of your attorneys’ business par
Consider DIY/online, legal professional or a solicitor
to put Lasting Powers of Attorney in place.