Lasting power of attorney

Contents
1. Lasting power of attorney 2. Enduring power of attorney 3. Types of LPAs 3.1. Lasting power of attorney - Personal welfare 4. Lasting power of attorney - Property and affairs 5. Safeguards

There are different types of powers of attorney, depending on your circumstances. A lasting power of attorney (LPA) is designed to be used in cases where you lack capacity to act, due to such factors as illness, an accident or the onset of dementia. For more information on capacity, see our ‘Power of attorney’ section.

No one can create a power of attorney for you and you must create your power of attorney whilst you are still capable. By planning ahead and making an LPA, you are able to give your instructions whilst you are of sound mind, in anticipation of the possibility of not being capable at some future date.

From1 October 2007, the lasting power of attorney (LPA) replaced the enduring power of attorney in England and Wales. You can no longer create new enduring powers of attorney although documents signed before 1 October 2007 can still continue to be registered. For more information, see our ’Enduring powers of attorney’ section.

The lasting power of attorney comprises two documents, one for your financial affairs and one for your personal welfare. These documents are called 'Lasting power of attorney - Personal welfare' and 'Lasting power of attorney - Property and affairs'. They are described below in greater detail.

The 'Lasting power of attorney - Personal welfare' deals with matters relating to your personal welfare, i.e. your social and health care needs and will enable your personal welfare attorney(s) to look after your own personal welfare if you are unable to do so yourself. Some examples of the things your personal welfare attorney will be able to do are:

• Decide where you live
• Make day-to-day decisions, such as deciding what you will eat or what clothes you will wear
• Make decisions about what medical care you will receive, including (if you agree to it in the LPA), whether or not you will receive life-sustaining treatment
• Decide when and where you will go on holiday
• Decide what social activities you might participate in

There are restrictions on the attorneys which are imposed which include:

• Consenting to place a child up for adoption or consent to the adoption of a child
• Consenting to sexual relations
• Giving you medical treatment for a mental disorder or consent to you being given medical treatment for a mental disorder if your treatment is regulated by Part 4 of the Mental Health Act 1983
• Deciding to vote on your behalf
• Consenting to marriage or civil partnership
• Consenting to a decree of divorce or dissolution of a civil partnership on the basis of two years’ separation

The 'Lasting power of attorney - Property and affairs' deals with matters relating to your financial affairs. If someday you lose capacity to look after your own financial affairs, this document will entitle your property and affairs attorney(s) to do the following types of things (not an exhaustive list):

• Open, close or operate bank accounts
• Claim and receive on your behalf, for example, all pensions, benefits, allowances, services, financial contributions, repayments, rebates
• Make all tax returns and adjusting and settling any claim for tax
• Pay your household expenses
• Buy, lease, sell property
• Pay for private medical care and residential care costs

When the LPA comes into effect

The initial step to making an LPA effective is registration with the Office of the Public Guardian. The personal welfare LPA can only be effective from the time you lose the capacity to act; whereas the property and affairs LPA can take effect before you lose capacity provided this is specified in the LPA itself.

It is very important that you trust any person that you appoint to act as your attorney. A lasting power of attorney is a very powerful document. However, you should be aware that there are a number of safeguards in place to help prevent abuse of the system by any attorney appointed under an LPA. These safeguards are the following:

• Your LPA must be registered. This registration process acts as a safeguard because certain people have the right to object to the registration.
• You, the donor, or your attorneys have to give notice of intention to register your LPA, giving 'named persons', who are specified by you in your LPA, the chance to object.
• An LPA must have a certificate from an independent person which confirms that the person who is giving the LPA authority understands what they are doing and hasn’t been influenced or defrauded.
• LPA attorneys must follow the LPA Code of Practice which provides guidance on the Mental Capacity Act 2005. If they do not, and neglect their duties toward you, they can be found guilty of a criminal offence, with possible imprisonment.
• If any evidence is presented to the Office of the Public Guardian of LPA attorneys not looking after the donor's best interests, the Public Guardian will look into the matter and decide what action should be taken.
• You have the option of placing restrictions in the LPA about what you want your attorneys to be able to do and what they cannot do.