What is a Lasting Power of Attorney?

Wendy Scarr B.A. (Hons) TEP
0113 320 5000
wills@winstonsolicitors.co.uk

Essentially a lasting power of attorney is a legal document which allows a person to appoint someone they trust to make decisions for them when they no longer have the mental capacity to make them themselves. Therefore the LPA has to be made while the person concerned still has the mental capacity to give their consent to handing over their affairs to somebody else. The LPA does not come into effect until it is registered with the Office of the Public Guardian.

Whereas the old Enduring Powers of Attorney system had a short document that had to be signed by the donor and the attorney and then witnessed, the new system has two sets of 25-page documents, one for property and financial affairs and one for personal welfare decisions. These require the donor and attorney to sign and also require the signature of a “certificate provider”. This could either be a professional such as a doctor or lawyer, or an independent person who has known the donor for at least two years. This person has to certify that the donor has not been placed under undue pressure to make the LPA and they understand the significance of it.

Lacking mental capacity can mean different things to different people, but it usually is taken to mean people who have an injury, disorder or condition that affects the way their mind works. The act states that “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to that matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

For people who fear losing mental capacity at some stage, the advantage of an Lasting Power of Attorney is that planning can be made for such an eventuality. So those who fear losing their mental capacity and who are anxious about their financial and personal affairs, are able to start planning for the decisions that they want to be made on their behalf, the people they want to make those decisions and how they want the people concerned to make those decisions. In this way they can plan how their health and personal and financial matters can be best handled when they lack the capability to do so themselves.

There are additional factors to ensure safety for those intent on making an LPA in that, apart from having to be registered with the Office of the Public Guardian and having to provide a “certificate provider”, the donor can also choose who is informed about their LPA and there is a requirement for the attorney or attorneys to follow the Code of Practice of the Mental Capacity Act 2005 and act in the best interests of the donor of the LPA.

Anyone can be appointed to the role of attorney as long as they are over 18 and are not bankrupt. Forms need to be filled in and signed by all the relevant parties and there should be a list of one or more people to be notified of the application.

Registration with the Office of the Public Guardian currently costs £120 per form, though some people including those on means tested benefits and earning less than a certain amount each year, may be entitled to a fee exemption or fee remissions. The laws regarding LPA’s are only applicable to England and Wales though Scotland has similar provisions. Northern Ireland has kept the Enduring Powers of Attorney and doesn’t intend to replace it.