Lasting Power of Attorney.
The decision to grant an LPA is an important one as, once registered and effective, this can give your attorneys the power to make decisions on your behalf. Your attorneys must assist you as much as possible to make decisions yourself and consider any preferences and follow any instructions you have included on the LPA document. Every decision must be made taking into account your best interests and also respecting your human rights.
These powers are granted by people to trustworthy individuals to make decisions on their behalf in the event that they lose capacity to do so themselves. We advise on the benefits of these powers and the different options to consider when deciding how the attorneys will be able to make decisions.
At Butler & Co Solicitors, we provide assistance to clients in completing the legal documents and registering the powers with the Office of the Public Guardian.
Issues are likely to relate to specific preferences and instructions the donor might wish to give to their attorneys. We can provide advice in this regard. Our rates for this area of work are competitive.
Types of LPAs
Property and Financial Affairs
Your attorneys would be able to make decisions on your behalf about matters relating to your property and financial affairs. This includes day to day decisions such as paying your bills, collecting your pension and managing your bank accounts, but also bigger decisions such as selling your property. They can also make gifts and donations to charity on your behalf.
The LPA for property and financial affairs can be used by your attorneys, with your consent, as soon as it is registered, if you wish. This can make the power quite useful as your attorneys could make decisions on your behalf with your consent if you were unable to do so if, for example, you were on holiday or unwell.
Alternatively, you can decide only to grant the power to your attorneys in the event that you lose the mental capacity to make decisions about your property and financial affairs. However, this can be less useful.
Types of LPAs
Health and Welfare
Your attorneys would be able to make decisions on your behalf about matters relating to your health and welfare. This includes day to day decisions such as your diet and daily routine, but also bigger decisions such as where you live and whether you should receive life-sustaining medical treatment.
When granting this power, you must choose whether your attorneys can give or refuse consent to life-sustaining treatment on your behalf. The treatment could include procedures such as a serious operations, cancer treatment or artificial nutrition or hydration. If you choose this option, your attorneys can speak to doctors as if they were you.
If you decide not to give your attorneys authority to give or refuse consent on your behalf, your doctors will take into account the views of the attorneys and of people who are interested in your welfare. Any written statement you may have made will also be considered, where it is practical and appropriate.
Please note that you could include further information about your wishes in relation to life-sustaining treatment in the preferences section of the LPA for your attorneys to consider.
Unlike the LPA for property and financial affairs, this power can only be used by your attorneys once it is registered and in the event that you have been deemed to lack the mental capacity to make decisions about your health and welfare.
Given the responsibility that will be placed on your attorneys, you should make the decision carefully and only choose people you can trust fully. The attorneys must be over 18 years old and have the mental capacity to make the decisions in the relevant area themselves. Further, in the case of a LPA for property and financial affairs, the attorneys must not be bankrupt or subject to a debt relief order.
You can choose to appoint only one attorney. If you do this, it would be worth considering whether you wish to appoint one or more replacement attorneys.
If you appoint multiple attorneys, you must choose how you wish to appoint them. You can choose from three options:
What to include in your LPA
Preferences.
You can choose to include preferences on your LPA. Your attorneys must consider these, but they do not have to follow your wishes. Here are some examples of preferences to include on a LPA for property and financial affairs:
“I'd like to reinvest all interest from each year’s investments into next year’s ISA allowance.”
“I would like to maintain a minimum balance of £1,000 in my current account.”
“I prefer to invest in ethical funds.”
Here are some examples of preferences to include on a LPA for health and welfare:
“I prefer to live within five miles of my sister.”
“I’d like to be prescribed generic medicines where they are available.”
“I would like to take exercise at least three times a week whenever I am physically able to do so. Whether or not I am mobile, I would like to spend time outdoors at least once a day.”
What to include in your LPA
Instructions.
You can choose to include instructions on your LPA. Your attorneys must follow these. Here are some examples of instructions to include on a LPA for property and financial affairs, and health and welfare:
Property and Financial Affairs:
“My attorneys must consult a financial adviser before making investments over £10,000.”
“My attorneys must not sell my home unless, in my doctor’s opinion, I can no longer live independently.”
“My attorneys must not make any gifts.”
Health and Welfare:
“My attorneys must not decide I am to move into residential care unless, in my doctor’s opinion, I can no longer live independently.”
“My attorneys must not consent to any medical treatment involving blood products, as this is against my religion.”
“My attorneys must ensure I am given only vegetarian food.”
The process of creating a LPA
Registration of your LPA.
We advise that you register the LPA as soon as it has been completed and signed. This is to ensure that any concerns that the Office of the Public Guardian has can be rectified as soon as possible.
Costs
There will be a registration fee of £82 per LPA charged by the Office of the Public Guardian.
More information
There is a guide online which you can refer to here.
When the attorney(s) signs the LPA form they must agree to have regard to the Mental Capacity Act 2005, regulations made under it and the Code of Practice. The Code of Practice can be found here.