What is a Lasting Power of Attorney (LPA)?
A power of attorney is a legal document where a person gives another person or persons (the attorney) authority to make certain decisions on his or her behalf. From 1 October 2007, a Lasting Power of Attorney (LPA) has replaced Enduring Powers of Attorney which remain valid but only in respect of your property and affairs. If you wish to give authority over your health and welfare you will need to make an appropriate LPA.
There are two types of LPA:
- A property and financial affairs LPA, which allows your attorney to deal with your property and finances.
- A health and welfare LPA, which allows your attorney to make welfare and health care decisions on your behalf, but only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment.
Your attorney
As with any power of attorney, it is an important document and you should take care whom you appoint as they should be trustworthy and have appropriate skills to make the proposed decisions. If you appoint more than one attorney, you can appoint them to always act together (jointly) or together and separately (jointly and severally). You may even appoint them to act jointly for some decisions and jointly and severally for others, although this should only be done with advice, as it may cause problems when using the power.
You may also choose to appoint a replacement attorney, should your attorney die or is otherwise unable to act for you.
When can the attorney act?
The attorney will only be able to act when the LPA has been registered. To do this, the document needs to be signed by you and your attorney(s), certified by a person (known as a ‘Certificate Provider’) whose role is to confirm that you understand the nature and scope of the LPA and have not been unduly pressured into making it. The Certificate Provider will also need to confirm there has not been any fraud and is no other reason preventing you making the power. The property and financial affairs LPA can be used both when you have the capacity to manage your own property and financial affairs, as well as if you lack mental capacity to make those financial decisions. The health and welfare power can only be used if you lack mental capacity to make a welfare or medical decision.
What happens if you have not made a LPA or EPA?
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf. This is both costly and time consuming.
Most care and treatment decisions can be made on your behalf without the need for a court application and decisions will be made collaboratively by medical professionals and your loved ones. However, if you wish to avoid potential disputes you can appoint an attorney(s) to make those decisions on your behalf by making a health and welfare LPA.
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