Lasting Power Of Attorney Information

Why set up Lasting Powers of Attorney and Advance Directives?

Most people think about writing wills but too few people write down what they want to happen if they become incapable of making decisions for themselves whilst still alive.

For example, if they were to lose 'Mental Capacity' due to an accident, poor health or old age caused by:

Dementia
Stroke
Head injury

For peace of mind, you should make Lasting Powers of Attorney (LPAs) to nominate someone NOW whom you trust to make important decisions on your behalf in the future if and when you can not. For example:

Did you know that a joint building society or bank account may be frozen or restrictions imposed if ONE of the account holders is deemed to lack mental capacity and there is no LPA in place?

Did you know that you may not be able to live where you had planned, such as being uprooted from your home to a residential home, in unfamiliar surroundings, if this is what others deem is in your 'best interest' to keep you safe?

Did you know that you may be given life-sustaining treatment that you might otherwise choose not to receive if you have not made clear your decisions before losing mental capacity?

Uncertainty can be avoided if the correct Lasting Power of Attorney' (LPA) is in place so that others are clear of your decisions and preferences. This legal document enables you to nominate a person(s) to make decisions on your behalf if and when you no longer have the mental capacity to do so for yourself.

Frequently Asked Questions

What is a Lasting Power of Attorney (LPA)?

This legal document enables you to nominate a person(s)

to make decisions on your behalf if and when you no longer

have the mental capacity to make decisions for yourself.

LPA's are an extremely useful instrument allowing people to

choose who they wish to deal with their affairs should they

themselves lose the capacity to do so whether this be due to

an accident, poor health or old age.

Who can make a Lasting Power of Attorney?

Anyone who is at least 18 years old and has mental capacity.

What if I decide not to proceed with the lasting power of Attorney?

If you decide not to proceed with the LPA's at this stage you can do so later as long as you still retain Mental Capacity. However, if at a later point you are unable to deal with your own affairs and do not possess the necessary mental capacity then you can not make an LPA.

What happens if I do not have a LPA and then lose mental capacity?

If this were to be the case then a different application to the Court of Protection will need to be made for someone to deal with your affairs. The court will then usually appoint a Deputy.

This process can be very lengthy and costly and we would therefore suggest an LPA should be created and registered with the Office of the Public Guardian at the earliest convenience to avoid the need for the court to appoint a Deputy.

What is the difference between an Ordinary Power of Attorney and a Lasting Power of Attorney?

An ordinary Power of Attorney cannot be exercised once the donor has lost mental capacity.

What does lack of mental capacity mean?

A person lacks capacity in relation to a matter if he or she is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. To pass the test they need to be able to absorb, retain, weigh up information and communicate their decision.

If a person lacks mental capacity they can not make a Lasting Power of Attorney.

What types of LPA are there?

There are two types of Lasting Power of Attorneys, one for Health and Personal Welfare and the other for Property and Financial Affairs. They are both similar documents but obviously relate to different decisions and aspects of the Attorneys duties.

When can the LPA be created?

You may create an LPA at anytime so long as you possess sufficient mental capacity.

What is the Mental Capacity Act?

The Mental Capacity Act (2005) protects people who may not be able to make some decisions for themselves because of, for example:
• Dementia
• Learning disabilities
• Mental health problems
• Stroke or head injuries.

The Act covers people in England and Wales.
It provides a legal basis for how other people can make decisions on their behalf. It allows them to plan in advance for other people to make decisions on their behalf at a point in time when they might lose the capacity to make decisions themselves.

The Act covers decision making about a person’s:
• Property and ﬁnancial affairs
• Health and welfare.

The Code of Practice supports the Act. It gives guidance on people’s roles and responsibilities when making decisions on someone’s behalf.

When can the LPA be registered?

The LPA can be registered immediately with the Office of Public Guardian (OPG) thus giving you peace of mind it is in place for when it is needed. Or it can be delayed and registered when needed at a later date, once you lack capacity, by your chosen attorney.

Can an attorney buy and sell a donor’s property?

If the attorney is appointed under an LPA Property and Financial affairs then they can, subject to any limitation to these powers decided and specified by you in the LPA itself.

Can another attorney be added after the registration of a Lasting Power of Attorney?

No this can not be done. A new LPA will have to be made provided the donor still has mental capacity. You can nominate replacement attorneys in the original LPA to avoid this.

What happens to the Lasting Power of Attorney when the donor dies?

The LPA is automatically terminated. In this event, the original LPA and a death certificate should be sent to the OPG as soon as possible.

Can an attorney write a Will for the donor?

No. if the donor has capacity he or she can do it themselves. If it is not done then arrangements can be made by the court for a statutory will to be drafted by a lawyer.

If two attorneys are appointed and one dies what happens?

If the two attorneys must act jointly, the LPA fails unless there is a replacement attorney to take the place of the deceased attorney.

How many Certificate Providers are required?

One Certificate Provider is sufficient unless there are no persons to be notified, in which case, two Certificate providers are required. We can provide this service.

What happens if my attorney dies?

If you have only one attorney, and you don’t have a replacement attorney, the LPA is invalidated if this happens after registration. If it happens before registration you can make another Lasting Power of Attorney if you still have mental capacity.

Property and Financial Affairs LPA

What is a Property and Financial Lasting Power of Attorney?

A Property and Financial Lasting Power of Attorney (LPA) allows you to make advance plans to manage your estate and affairs or to nominate someone to assist you whilst you still have mental capacity.

This may relate to future buying and selling of property, opening and closing of bank and building society accounts, claiming and receiving state benefits and allowances and other financial issues that involve you.

This type of LPA will assist your nominated attorney to manage your property and financial matters for you, such as having authority to manage your bank account or your joint accounts.

When making an LPA you have to decide who is going to be the attorney, what decisions they can make on your behalf and how they are to make these decisions.

If you choose to register immediately, The LPA Property and Financial Affairs can be used by your attorney even before you have lost mental capacity if this is your decision. This can be useful as you can use it for convenience like a general power of attorney.

Please note that if you have very complex financial arrangements we may refer you to seek additional advice from a specialist financial advisor or solicitor.

l advisor or solicitor.

Health and Welfare Lasting Power of Attorney

What is a Health and Welfare LPA?

A Health and Welfare LPA enables your Attorney to make decisions about:

Where you are to live
What sort of care would be most suitable
Refusing consent to medical treatment.

Life-sustaining treatment

Your nominated Attorney can only make decisions about life-sustaining treatment if you have indicated that you want them to in the LPA.

Mental Capacity Assessments

The Mental Capacity Act states that a person lacks capacity if they are unable to make a specific decision, at a specific time, because of an impairment of, or disturbance, in the functioning of mind or brain.

Mental capacity is the ability to make a decision. If a person lacks capacity, they have an impairment or disturbance that leaves them unable to make a decision. The loss of capacity could be partial or temporary. It is possible for a person to lack capacity to make one specific decision but not about another.

Assessing Mental Capacity

An assessment that a person lacks the capacity to make decisions should never be based simply on the person’s age, appearance, assumptions about their condition (includes physical disabilities, learning difficulties and temporary conditions (eg, drunken-ness or unconsciousness), or any aspect of their behaviour.

Assessing a person’s capacity accurately is important; otherwise, a person might be denied the right to make a decision because it is unwise and not in their best interests.

The starting assumption should always be that the person has capacity. The Act details a two-stage test of capacity:

Does the person have an impairment, or a disturbance in the functioning, of their mind or brain?
Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

Functional tests of capacity

To be able to make a decision a person should be able to:

1. Understand the decision to be made and the information provided about the decision. The consequences of making a decision must be included in the information given.

2. Retain the information – a person should be able to retain the information given for long enough to make the decision. If information can only be retained for short periods of time, it should not automatically be assumed that the person lacks capacity. Notebooks, for example, could be used to record information which may help a person to retain it.

3. Use that information in making the decision – a person should be able to weigh up the pros and cons of making the decision.

4. Communicate their decision – if a person cannot communicate their decision – for example, if they are in a coma – the Act specifies that they should be treated as if they lack capacity. You should make all efforts to help the person communicate their decision before deciding they cannot.

We provide independent mental capacity assessments including Court Of Protection (COP3 forms)

This refers to any treatment that a doctor considers necessary to keep you alive, for example:

A serious surgical operation, like a heart bypass
Receiving chemotherapy, radiotherapy, or other cancer treatment or surgeryr
An organ transplant.

However, if you have breathing problems & develop pneumonia, a simple course of antibiotics could be regarded as life-sustaining.

Artiﬁcial nutrition or hydration (ANH) can also be life-sustaining. ANH is food and water given to someone other than by their mouth.

In making such decisions they must not be motivated by a desire to bring about a person’s death.

This would allow your attorney(s) to decide to withdraw treatments like ANH in situations where it has become a burden or is not working.

If you don’t want your attorney(s) to make decisions about life-sustaining treatment, your doctors will make the decision. They will carry out a "best interests assessment"– taking into account the views of your attorney(s) and others involved in your welfare.

In a health and welfare LPA, your attorney(s) can only make decisions on your behalf – whether about life-sustaining treatment or not – once you lack mental capacity.

If you can decide then it remains your decision. This is an important safeguard.

Exceptions:

Attorneys cannot make decisions about:

Consenting to marriage or a civil partnership
Consenting to a decree of divorce (or civil partnership dissolution) based on two years’ separation
Consenting to sex
Medical treatment for a mental disorder if the treatment is regulated by Part 4 of the Mental Health Act 1983

What is Deputyship?

Deputyship is a way that someone becomes legally allowed to make certain decisions on another person’s behalf, if:

the person no longer has the mental capacity to make those decisions for themself and
the person has not made an LPA or EPA, which is still valid.

Deputies are appointed by the Court of Protection. This means that you must apply to this court if you want to become a deputy. The court will decide if you are suitable based on your application and the information that you provide.

Do you wish to become a deputy for someone you care for?

To apply to become a deputy, you will need to submit an application to the Court of Protection. The application process involves giving the court detailed information about the circumstances of the person with dementia and this will include the person’s living arrangements and family relationships, as well as details about their finances or care arrangements depending on the type of deputyship you are applying for.

You can get further guidance on the Court of Protection’s website.

We can support you through the Deputyship court process from start to finish.

If the person you are concerned about no longer has mental capacity to arrange a lasting Power of Attorney for themselves, we can assist you to apply for deputyship if you think this is necessary.

We invite you to Complete the “Contact Us” form for more information.

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