What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a document which give people (Attorneys) the authority to make decisions on your behalf if you are no longer able to make these decisions yourself due to a loss of mental capacity.
There are two types of Lasting Power of Attorney:
- Property & Financial Affairs
- Health & Welfare
Lasting Power of Attorney documents must be made whilst you still have mental capacity and cannot be made after capacity has been lost. If you no longer have capacity, an application will need to be made to the Court of Protection. Because of this, it is important that you consider Lasting Power of Attorney documents sooner rather than later.
Lasting Powers of Attorney must be registered with the Office of the Public Guardian prior to use. It is important this is taken into consideration when considering creating your Lasting Powers of Attorney as the registration process can take up to and around ten weeks. The documents cannot be used until registration has taken place.
The role of an Attorney
It is important that you only appoint an Attorney who you can trust to make these important decisions on your behalf and who will act in your best interests.
You can appoint up to four Attorneys and you are also able to appoint up to four replacement Attorneys to act if your original Attorneys are unwilling or are unable to act.
They must be over 18 years of age, have mental capacity and have not been declared bankrupt.
If you do not have, or wish, to appoint a family member or friends as an Attorney, then you can make the decision to appoint a professional, such as a solicitor, to be your Attorney.
What is mental capacity?
The Mental Capacity Act (MCA) 2005 is an important piece of legislation that sets out the relevant information in respect of mental capacity as well as information in respect of Lasting Powers of Attorney.
The MCA 2005 sets out that “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the function of, the mind or brain”
The disturbance does not have to be permanent and can be temporary.
If loss of capacity needs to be proved, this can often be done by way of capacity assessment, or a letter from a medical practitioner.
Capacity & your Lasting Power of Attorney
A Property & Financial Affairs Lasting Power of Attorney can be used, once registered, when you have lost mental capacity, but also if you have capacity but want someone to help with decisions/practicalities with your consent.
A Health & Welfare Lasting Power of Attorney can only be used once mental capacity has been lost.
Next steps...
For further information, please feel free to contact me on 01332 364436 or email e.facer@timms-law.com
To learn more about LPA's, visit our webpage here.
For more detailed information about a Property & Financial Affairs Lasting Power of Attorney, click here, and for Health and Welfare Lasting Power of Attorney, click here.
