What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that gives power to others to make decisions about your property and finances, or health and welfare, in case at some time in the future, you can’t make them for yourself.
Doesn’t my ‘next of kin’ automatically have power to make decisions for me?
No. There is no legal definition of ‘next of kin’ although it is generally taken to mean your nearest relative. In health and care, we often ask people to tell us the name and contact details of their ‘next of kin’ so that we know who to speak to in case of emergency. Being identified as a person’s ‘next of kin’ does not come with any rights to make decisions for them.
If you want someone to be able to make decisions for you, the only way to make sure that they can, is to appoint them as your attorney. For example, if you want your husband to be able to make decisions about your health and welfare when you can’t, you will need to appoint him as your attorney for health and welfare. If you want your adult daughter to be able to make decisions about your money and property, you will need to appoint her as your property and financial affairs attorney.
What’s in a Lasting Power of Attorney?
An LPA sets out who you have appointed to make decisions for you, and in what areas of your life you want them to make decisions. The LPA can set out any preferences, or any restrictions on the way that you want your attorney to act for you. For example, you might have strong ethical views and specify that your property and financial affairs attorney must not invest your money in tobacco products, animal testing, or weapons.
If you appoint a health and welfare attorney, the LPA must say whether or not you give your attorney power to make life sustaining treatment decisions on your behalf. If you choose not to give this power, medical professionals will make these decisions for you, in your best interests, if you can’t make them.
Who can make a Lasting Power of Attorney?
To make an LPA, you must be over 18 and have the mental capacity to make the decision to appoint an attorney. Generally, this means that you must understand what the LPA is and the effect it has. You can read more about what it means to have mental capacity using this link.
How can I make a Lasting Power of Attorney?
An LPA must be made using a specific form. You must sign the form to confirm that you are giving power to your attorney. Your attorney must sign it to accept the power that you are giving to them. Each of you must sign in front of a witness, who will also sign the LPA.
A certificate provider must also sign the LPA (after you sign it, and before your attorney signs it) to say that
- you understand what the LPA is for and the extent of the power that you are giving under it;
- you are not being pressured into signing it; and
- there is no other reason the LPA should not be made.
Your certificate provider could be a professional such as a solicitor or a doctor, or someone who has known you well for two or more years. There are some people who can’t be your certificate provider, such as one of your attorneys, or someone related to one of your attorneys.
Once the LPA has been signed, it must be sent to the Office of the Public Guardian (OPG) so that they can register it. The OPG charge a fee for registering LPAs. The LPA can’t be used before it is registered. Once your LPA has been registered, you should store it safely, and make sure that your attorney knows where to find it, in case they need it. You might also want to share a copy with relevant organisations, such as your bank, in case it needs to be used.
You can find the LPA forms and read guidance on how to complete then using this link. You do not need a solicitor to make an LPA, but you might choose to, especially if you think your affairs could be complicated. A solicitor will make a charge for their help.
Who should I choose to be my attorney?
Think carefully about who to appoint as an attorney. Unless you put any restrictions on the way they can act for you, an attorney will generally have the power to make any decisions for you that you can legally make for yourself. There are some exceptions to this; for example, your attorney cannot write a Will for you, or consent to marriage or a sexual relationship on your behalf.
An attorney must be over 18 years old and should be someone you trust to make decisions for you, if you ever need them to. An attorney will need to be someone who is willing to help you, and who is able to help you. For example, someone who lives abroad might be very willing to be your attorney but it might be practically very difficult for them to help from a long distance away.
Your attorney could be a family member or a friend, or you could decide to appoint a professional attorney such as a solicitor or an accountant. A professional attorney will usually charge a fee for the time that they spend acting for you. Your attorney should be someone who understands what is important to you, and the choices that you might make for yourself if you could.
It is generally recommended that you choose more than one attorney, if you can. You can choose for your attorneys to act together on every decision they make. Or you can choose for your attorneys to act independently, which means that they can make decisions separately from each other. It is usually more practical for your attorneys to be able to make decisions independently / separately.
It it also a good idea to choose a replacement attorney, in case in the future one of your attorneys can’t act for you anymore (for example, because they have died). You can choose a replacement attorney at the same time that you make your lasting power of attorney, so that if anything happens to your original attorney(s), your attorney document can still be used.
What can an attorney do?
An attorney can make decisions for you, in the areas that you have given them authority (permission).
There are two separate types of LPA, which give authority to make different types of decisions:
- Health and welfare LPA – this allows your attorney to make decisions about your health and social care. This means making decisions about your day-to-day life, such as where you live and what help you get to live there. It could mean making more serious decisions such as whether you should have life-saving treatment. Your attorney can speak to professionals on your behalf, such as your GP, optician or dentist, and access your medical records if they need to.
- Property and financial affairs LPA – this allows your attorney to make decisions about your money and property. This means making decisions about your day-to-day finances such as paying your bills, or making an investment for you such as buying shares in a company. It could mean making more serious decisions such as selling your home. Your attorney can speak to your benefits or pension provider on your behalf, and access your financial records, if they need to.
Your attorney can only act in line with the powers that you that you have given them in the LPA. Your health and welfare attorney can’t make decisions about your property and finances, and your property and financial affairs attorney can’t make decisions about your health and welfare. You can appoint different attorneys to make different types of decision. For example, you might be very confident that your long-term friend can make health and welfare decisions for you, but because you worry that they are not very good with money, choose to appoint someone else to make your property and financial decisions.
When can my attorneys act for me?
A Lasting Power of attorney document must be registered with the Office of the Public Guardian (OPG) before it can be used.
There is an important difference between the health and welfare LPA and financial affairs LPA.
You can choose to allow a property and finance attorney to take action for you even when you have mental capacity. As long as you can make decisions for yourself, you are in control of your property and finances. But choosing to let your property and finance attorneys act for you as soon as the LPA is registered, can give you more flexibility if you need help. For example, if you are unwell and want your attorney to go to your bank and pay some bills, you can ask them to do that for you.
Health and welfare attorneys can only make decisions for you if you lack mental capacity (can’t make the health and welfare decision for yourself).
How do I know my attorney will act in my best interests?
A person appointed as your Lasting Power of Attorney must follow the Mental Capacity Act 2005. This means each decision they make must be in your best interests. Making a decision in your best interests includes thinking about your past and present wishes and feelings, and consulting with other people who know you, such as relatives, and professionals involved in your care. Sometimes it might mean asking for specialist help, such as from a financial advisor. You can read more about best interests using this link.
The law also says that attorneys must act with care and skill they make decisions for you. They should act honestly, and not use their power for their own benefit or in a way that would cause a conflict between their interests and your own. The Office of the Public Guardian (OPG) gives guidance on how attorneys should act, which you can read using this link.
What if I change my mind or there’s another sort of problem?
If you want to cancel your LPA or change your mind about one of your attorneys, you can do this, while you have mental capacity to make the decision. If they can’t make the decision and someone else is worried about the way your attorney is acting for you, they can make a report to the Office of the Public Guardian (the OPG). The OPG has power to investigate an attorney, and to take action to have them removed, if they are are not acting in your best interests.
You can read more about making a Lasting Power of Attorney, cancelling it, or removing an existing attorney using this link.
You can report concerns about how an attorney (or count appointed Deputy) is acting using this link.
If there is a dispute about your attorney document, the way your attorney acts for you, or a dispute between attorneys, and this can’t be resolved, the Court of Protection. You can read more about the Court of Protection using this link.