What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) gives another person, or persons, the power to make decisions on your behalf. Whilst those people are known as ‘attorneys’, they do not need to be legally qualified – quite often, people will choose family or friends to act for them.
There are two types of LPA : one covering ‘Financial’ decisions (including property) and the other covering ‘Health and Care’ decisions. Both are recognised in England and Wales, once registered.
When you make a Lasting Power of Attorney, you are known as the ‘Donor’. Financial Lasting Powers of Attorney can be used at any time once they have been registered, with the Donor’s permission. If the Donor then loses capacity, their attorneys can continue acting for them. Health and Care LPAs, on the other hand, can only be used if the Donor loses mental capacity.
LPAs are not intended to exclude Donors who have lost capacity. Attorneys must always act in accordance with the Mental Capacity Act 2005. This includes involving Donors in the decision making process as far as possible and bearing in mind what the Donor would have done themselves in the same situation. More information for Attorneys on how they should act can be found in the Mental Capacity Code of Practice.
Why do I need a Lasting Power of Attorney?
Life is unpredictable and any of us could become incapacitated at any time. In such circumstances, we would assume that our partners or family could take over managing our bank accounts and bills, especially if these are held in joint names. So it may come as a surprise to learn that this is not the case at all.
Age UK explains:
“If you’re married or in a civil partnership, you may have assumed that your spouse would automatically be able to deal with your bank account and pensions, and make decisions about your healthcare, if you lose the ability to do so. This is not the case. Without an LPA, they won’t have the authority.”
Partners – even married couples – do not have an automatic right to manage our accounts and finances. They would have to apply to the Court of Protection for a Deputyship Order to be able to do this. Such orders involve a lot of cost and can take months to obtain.
Another disadvantage of the ‘wait and see’ approach is that it gives us no control over who applies to be a Deputy. Further, since we have already lost capacity, we cannot place any limits on their powers! Such matters are for the Court to decide.
Where is a Lasting Power of Attorney valid?
Lasting Powers of Attorney are valid across England and Wales. Scotland has a similar type of system but the documents are known as ‘Continuing Powers of Attorney’ (for financial decisions) and ‘Welfare Powers of Attorney’ (for health and care decisions). Both Northern Ireland and the Republic of Ireland have ‘Enduring Powers of Attorney’. This was also the name that England and Wales previously used for such documents in relation to financial decisions, and any made prior to the Mental Capacity Act 2005 coming into force in October 2007 are still valid.
A Lasting Power of Attorney made in England and Wales may not be recognised in other jurisdictions. If you move abroad, you should seek specialist advice on whether your LPA will be valid. Patricia Wass TEP explains:
The test for mental capacity differs throughout various foreign jurisdictions. They each have their own approach in the way that they define mental capacity as well as the various forms of representation that can be used like an LPA or EPA. Sometimes these are referred to as continuing or durable powers of attorney in other jurisdictions. The differing powers can be revoked by incapacity, marriage or divorce, so specialist advice will always need to be taken in respect of the jurisdiction in which the relevant power is to be used.
Patricia Wass TEP, for STEP
What are the alternatives to a Lasting Power of Attorney?
The key feature of a Lasting Power of Attorney is that it survives you losing mental capacity. There are other documents you can make which allow you to delegate decisions to those you trust, but these will end if you lose mental capacity. These include:
- Third party mandates – these allow access to your bank accounts. Each bank has their own version of the mandate, so you’ll need to contact your bank to see which form they use.
- Ordinary power of attorney – this is a fairly simple document that either gives a chosen person the power to make any financial decision for you, or limits their power to certain matters.
- Advance decision – although not strictly a document delegating power, this allows you to make decisions as to life sustaining treatment in advance. Should doctors be unable to speak to you when the treatment is required (for example, because you are unconscious), this legally binding document sets out your wishes clearly.
- Appointee – an appointee can help you with claiming benefit – for example, signing forms for you, telling the benefits office about changes and purchasing goods for you with your benefits payments.
All of the above can be good short term solutions but they do not survive you losing capacity, and they offer far less in terms of control and accountability as a Lasting Power of Attorney. If an LPA is being misused, the Office of the Public Guardian can intervene and take steps to prevent the Attorney from abusing their position. There is no such safeguard with Ordinary Powers of Attorney or Third Party Mandates.
How do I make a Lasting Power of Attorney?
There are several options:
- You can download the forms from the Government Website here, complete them yourself and post them off to be registered.
- You can make a LPA using the online service – see the video example below.
- You can use a solicitor to help you.
A LPA is a powerful legal document. A solicitor can advise you appropriately on how to draft the LPA to limit the powers afforded to your attorneys. They can also ensure that the LPA is not drafted in such a way that it becomes unusable. Although the Office of the Public Guardian will check the LPA for errors on registration, they will not comment on how you have appointed attorneys or whether your instructions are workable. A solicitor’s advice in these areas is invaluable.
Can I revoke my LPA?
Once you have made and registered a LPA, you can revoke it at any time whilst you have mental capacity. This is done by sending a Deed of Revocation to the Office of the Public Guardian, together with your original LPA documents.
If you have appointed your attorneys to act jointly and severally, and you simply want to remove one of them, you can do this by submitting a partial Deed of Revocation instead. You cannot make any other changes to your LPA without making a new one – although you can keep the OPG up to date with you and your attorneys’ addresses.
There are some pending changes to Lasting Powers of Attorney – find out more here.
Jen is a practising Solicitor / Chartered Legal Executive and Commissioner for Oaths, admitted as a Fellow in 2006 and now SRA-regulated freelance. She started working in law in 2000 and her legal experience includes both private practice and in-house. She was Highly Commended by CILEX at the 2018 CILEX National Awards 2018 for Private Client expertise and she has authored work for the CILEX journal, LexisNexis and the Parliamentary Review amongst others.