Lasting Power of Attorney

Many people are concerned about what will happen to them in the event that they cannot make decisions for themselves through loss of mental capacity. With a growing elderly population, people are much more aware of the possible effects of Alzheimer's, dementia, strokes and other conditions which can cause loss of capacity.

A Lasting Power of Attorney (LPA) provides the opportunity for them to have some say in their future care, and to state what type of medical treatment they would want or not want, as well as appointing someone to look after their property and finances. You can set up an LPA so that it only activates once you are medically diagnosed as having lost mental capacity.

By setting up an LPA in advance you are able to choose someone you trust to deal with your affairs. If you do not have an LPA, and later lose mental capacity, then someone will need to apply to the Court of Protection to become entitled to manage your affairs and this may not be the person you would have chosen yourself.

A Lasting Power of Attorney enables the person making it (the donor) to give someone else (the attorney) the legal right to deal with his or her affairs.

Two types of LPA are available. A Property and Affairs LPA, which gives the attorney the authority to deal with the donor's finances and property, and a Personal Welfare LPA which allows them to make decisions relating to the donor's healthcare, welfare and in some cases end of life treatment.

The philosophy behind the law change is that even those people who lack capacity should be empowered to have a say in decisions about matters which affect their lives.

The person making the LPA, the donor, will often appoint a family member or friend to be responsible for making decisions for them in the future. It is possible to appoint one person to act, or to name more than one person and specify different areas that each can make decisions about. It is also possible to specify that decisions should be made jointly by both attorneys.

Property and Affairs Lasting Power of Attorney

A property and affairs LPA can be set up to come into force as soon as it is registered, or the donor can restrict it so that it can only be used if they lack mental capacity.

It gives the attorney the authority to deal with the following areas, unless restricted by the donor at the time of taking out the LPA:

• Dealing with bank accounts and other finances
• Claiming, receiving and using all benefits (on the donor's behalf)
• Dealing with the donor's taxes
• Receiving income or inheritance for the donor
• Buying and selling property
• Making limited gifts on the donor's behalf

Restrictions exist in many of these areas aimed at protecting the donor. For instance, gifts are limited to customary gifts the donor may have made (eg. birthday gifts to relatives) and must not be unreasonable in size given the donor's financial circumstances.

Importantly, an attorney is under obligation only to act in the donor's interests at all times, and various safeguards exist to ensure this.

Personal Welfare Lasting Power of Attorney

A personal welfare LPA can only be used once it has been registered with the Office of the Public Guardian and also, importantly, after the donor has lost mental capacity.

It offers broad scope for making decisions in a number of areas. These include:

• Where the donor should live and who they should live with
• The donor's day to day care, including diet and dress
• Consenting to or refusing medical examination and treatment on the donor's behalf
• Assessments for and provisions of community care services
• The donor's personal correspondence and papers
• Complaints about the donor's care or treatment

LPAs are tailor made to the individual. At the time of making the LPA the donor can modify the scope of the power. For example, the donor may not wish their attorney to have power to decide who the donor has contact with. This can be stated in the LPA at the outset so that it is clear which decisions the attorney is allowed to make.

An attorney can only consent to or refuse life-sustaining or life-prolonging treatment on behalf of the donor if expressly authorised to do so by the LPA. The attorney is duty bound to act in the best interests of the donor at all times, and in cases of end of life treatment should consult with carers and family members who have an interest in the donor's welfare. Of course, no attorney can be given power to demand that treatment be given if the medical staff in charge of the donor's care do not believe it to be necessary.

The new LPA provides people with the ability to exercise a much greater degree of control over their future care in the event of loss of capacity. Making a personal welfare LPA needs careful consideration beforehand and may involve consultation with family members and medical practitioners.

Lasting Powers of Attorney can be complex and legal advice should always be sought.

Contact me for more information or to arrange a consultation.