Lasting Powers of Attorney

Local solicitor Maralyn Hutchinson answers frequently asked questions about Lasting Powers of Attorney.

Q.        How many types of Lasting Power of Attorney (LPA) are there?

A1. Property and Financial Affairs – For matters relating to money and property, this covers bank accounts, other savings, assets and liabilities.  You do not have to own property or have a lot of money for this LPA to be useful or necessary.  It can be used with your consent, as soon as it is registered or you can specify it is only be used if you do not have mental capacity.

A2. Health and Personal Welfare – This covers a person’s personal and health care and can only be used if you do not have the mental capacity to make decisions yourself.  Your attorneys can decide about your daily routine, moving into a care home or getting help from social services.  You can give your attorneys the power to refuse or agree to any medical treatment you may need if ever you are unable to make that decision.  If your attorneys do not have that power, doctors would decide.

Q.        Who can I appoint as my attorney?

A. You can have up to 4 attorneys who must be over 18 and have mental capacity.  An attorney must not be bankrupt or subject to a debt relief order.  Many people choose family members, friends and those they trust.  A legal background is not required.  You can ask anyone to be your attorney.  Make sure that each person agrees to be your attorney before you name them in your LPA.

There are circumstances where an attorney can no longer act on your behalf.   If an LPA is cancelled, the attorneys can no longer act on your behalf.

Q.        I’ve heard that if I authorise my attorneys, they can make significant health care decisions for me?  

A. In your Health and Welfare LPA you can give your attorneys authority to give or refuse consent to life-sustaining treatment on your behalf.  If this option is chosen, your attorneys can speak to doctors as if they were you.  The meaning of life sustaining treatment is different for each person and is not defined. 

Q.        How are my interests protected?

A.Your attorneys must always act in your best interests and follow any instructions you give concerning decisions to be made.  Attorneys must follow the Mental Capacity Act Code of Practice.  This and further information are available on https://www.gov.uk/power-of-attorney/overview.

Q.        What is “mental capacity?”

A. ‘Mental capacity’ means the ability to make a decision with at least a general understanding of the decision required, why it is required and the likely consequences.  Although sometimes people are able to make some kinds of decisions they do not have the mental capacity to make others.  A power of attorney enables you to control the decisions that affect you, even when they are made by someone else on your behalf and allows you to plan and decide what decisions you want to be made on your behalf and who will make those decisions.  You can set boundaries for those decisions.  Your attorneys cannot change your Will or enter into a loan or mortgage contract. 

Q.        What if my mental capacity is not sufficient to understand the meaning of an LPA?

A.        In those circumstances, an application can be made to the Court of Protection (COP) for a Deputy to be appointed for you.  Most deputyships relate to property and financial affairs.  The application can be made by a relative, friend or the Local Authority.  The appointment is supervised by the COP under one of five regimes of differing “touch “depending on the make up and value of your estate.  An insurance indemnity bond renewed annually is required and important decisions such as the sale of your property will require a separate court order. 

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