Lasting power of attorney (LPA) is a legal status that allows adults over the age of 18 and with mental capacity to make certain decisions for someone who is unable to make them themselves, often following a dementia diagnosis. It’s a big responsibility, and must be seriously considered by everyone involved.
Some people will be able to make decisions about some things and not others, or their ability to make decisions can change on a daily basis. In some cases, it’s possible to help someone through making a decision themselves, but in other cases, the person lacks mental capacity and needs more formal legal support.
There are two types of LPA, and one person can decide to take on both, or two people can be appointed to each one, if needed. Those with LPAs, known as attorneys, can make decisions related to a person’s health and welfare, and can also manage finances on behalf of the person.
The property and financial affairs LPA involves decisions around your property and finances, including managing money and a bank or building society account, paying bills and mortgages, collecting benefits or a pension, investing money or selling the person’s home. An attorney’s power can be limited to certain assets, for example, the person’s bills but not their home.
The health and welfare LPA revolves around decisions about the person’s health and welfare. This means you can make decisions around a person’s daily hygiene routine and diet, medical care, recreational activities and moving into a care home.
When an LPA might be needed
An LPA is extremely useful if you have an accident or an illness and cannot make your own decisions by yourself (you ‘lack mental capacity’).
This is the case of many people with dementia, for example. While they may still be independent in the early stages, they will eventually reach a point where they lose mental capacity and are no longer able to make decisions.
It is advisable to get an LPA well before it is actually needed. This is because, if someone loses mental capacity and doesn’t have an LPA, their family will have to apply to the Court of Protection, which can be long and costly. The LPA should be appointed while the person is still able to make independent decisions.
The major benefit of an LPA is that it prevents a stranger, or someone you might not trust or who doesn’t know the person very well, from gaining LPA power.
How to become someone’s attorney
It’s easy to assume that a person’s partner will be able to act on their behalf when they lose capacity to make decisions for themselves. But this isn’t the case – without an LPA they won’t be able to do so.
It’s important to first properly consider the responsibilities of being someone’s attorney, and making sure you have the time to take it on.
To put a LPA in place, the donor must first complete a form that corresponds to the type of attorney they need. The form must then be sent to the Office of the Public Guardian. Many people find that they are able to complete the form without seeking legal advice. They must get your LPA signed by a certificate provider – someone they know or a professional, who can confirm that you understand the application process and weren’t under any pressure to sign it.
Then, they will need to register it with the Office of the Public Guardian before your LPA can be used. This costs £82, but those on a low income may be eligible for a 50% discount, and those receiving certain benefits won’t have to pay anything.
There is no set timescale for when your loved one needs to register your LPA, and this part of the process usually takes between nine and 12 weeks, which is why some LPAs choose to apply well in advance of them needed to actually register.
The importance of following the Mental Capacity Act
The Mental Capacity Act protects those who lack the mental capacity to make their own decisions about their care and treatment, and need an LPA. Attorneys must follow the act when making any decisions.
It states that they must act in the person’s best interests, consider their past and present wishes, keep all of your money separate from their own and don’t take advantage of the person for their own benefit.
Attorneys have a responsibility to ensure their loved one is given as much help as possible to make their own decision before deciding they are unable to. For example, if they understand things better at a certain time of day, or communicated in a certain way, you must do this first.
Where to find more information and support
If you need advice with LPAs, you can contact the Office of the Public Guardian, talk to a solicitor who specialises in this area, or contact the social services of your local authority for advice on using an advocacy service.
You may also find our free Funding Care Guide useful.