What is a lasting power of attorney?

You may have made a will or at least know that it’s important to make one. However, have you made plans to protect your wishes whilst your alive, in case you lose the ability to make your own decisions? It’s not easy to think about a time when you might not be able to make your own decisions, but if that time comes, setting up a Lasting Power of Attorney (LPA) can make life a lot easier.

A will is very different to a power of attorney. A will ensures that your money, property, investments and possessions (also called your “estate”) goes to the people and causes you want, after you die.

A Lasting Power of Attorney (LPA) ensures that someone you choose and trust makes decisions about your health and wellbeing and finances whilst you are alive, but have lost mental capacity to make these decisions. If you don’t have a power of attorney in place, it can be costly and a complicated process through the court of protection, to arrange for someone to make decisions for you, once you have lost capacity to make your own decisions.

Understanding Mental Capacity

Having mental capacity means you are able to make your own decisions and understand implications of your decisions. If someone can’t understand information relating to a decision they need to make, keep that information in their mind, make a decision based on that information or communicate their decision (by talking, using sign language or any other means), they are said to be unable to make that decision.

Mental capacity is different for everyone and it can change from day to day. For example, some people will be able to make decisions about certain things. Others may be unable to make a decision at one time, but then be able to later on. Taking time to understand or communicate a decision should not be mistaken for lack of mental capacity. Nor should having a certain condition.

Having dementia, a learning disability or acquired brain injury, for example, doesn’t automatically mean you can’t make your own decisions. If you’re having difficulty communicating your decision to someone, they should always make an effort to help you through that difficulty, so you can make your wishes known. The person making a decision for you must make sure they are acting in your best interests at all times. This means they must consider your past and present wishes, feelings, values and beliefs.

You can only register a LPA if you have not been put under any pressure and have mental capacity to give this authority. An LPA doesn’t have to be permanent. If you change your mind, you can cancel it at any time while you have mental capacity.

There are two different types of LPA:

• For making decisions about finances
• For making decisions about health and care

LPA for financial decisions

This allows your attorney to make decisions on things like:

• Selling your home
• Paying the mortgage
• Paying bills
• Arranging repairs to your home.
• You decide when you want this type of LPA to start. It could be while you still have mental capacity, or if you lose capacity.
• You choose if your attorney can make all or only certain types of financial decisions on your behalf.
• Your attorney has to keep your money separate from theirs and keep accounts to show this.
• You can ask for regular details of how much money you have – and how much has been spent. You can also ask that these be sent to your solicitor or a family member.

LPA for health and care decisions

This allows your attorney to make decisions on things like:

• Where you should live
• Your medical care
• What you should eat
• Who you should have contact with
• What kind of social activities you should take part in.
• Unlike LPAs for financial decisions, your attorney can only use this LPA if you no longer have mental capacity.
• You can also give your attorney permission to make decisions about life-saving treatment.
• If you lose mental capacity and don’t have an LPA in place, any decisions about your healthcare will be made by doctors. They will consult your family but the final decision lies with them.

How can I set up a Lasting Power of Attorney?

There are four simple steps:

1. Order LPA forms and an information pack from the Office of the Public Guardian.

You can download the forms (and even fill them out) online at www.gov.uk/lasting-power-of-attorney or call them on 0300 456 0300.

2. Fill out the forms – either yourself, or with the help of a solicitor or local advice agency.

3. Have the LPA signed by someone you know well or a professional such as a doctor, social worker or solicitor, but it can’t be a family member. It’s their job to confirm that you understand what the LPA is and haven’t been put under any pressure to sign it.

4. Register the LPA with the Office of the Public Guardian. Your LPA cannot be used until this is done. Registration takes around nine weeks and costs £82. If you’re on a low income (under £12,000 per year), you may be eligible for a 50% discount. If you’re receiving certain benefits you won’t have to pay anything at all.

Useful to know......

Lasting Power of Attorneys (LPA) replaced Enduring Power of Attorneys (EPA) in October 2007. If you have an Enduring Power of Attorney, it should still be valid. You can contact the Office of Public Guardian for more information about EPA’s

You must register an LPA while you have the mental capacity to do so. If you signed an

LPA while you still have mental capacity but lose capacity before registering

it, your attorney can register it for you. Contact the Office of the Public Guardian for more information. Tel - 0300 456 0300

Contact Age UK for more advice about creating a Lasting Power of Attorney (LPA) and other legal matters. You can also call their advice line on 0800 055 6112. They're open 8am to 7pm, every day of the year.