An LPA enables you to choose a trusted person to make financial or healthcare related decisions on your behalf, should you lose mental capacity. However, you need mental capacity to initially set up a LPA. Mental capacity is the capability to make specific significant decisions.
There are two kinds of LPA; financial and healthcare.
- opening, closing and using your bank and building society accounts
- claiming, receiving and using your benefits, pensions and allowances
- paying your household, care and other bills
- making or selling investments
- buying or selling your home or any property
- You can appoint different attorneys for personal finances, or for your businesses.
- giving or refusing consent to healthcare
- staying in your own home and getting help and support from social services
- moving into residential care and finding a good care home
- day-to-day matters such as your diet, dress or daily routine
These decisions can only be made by your attorneys when you
are no longer able to make them yourself, e.g. when you have lost mental
making an LPA:
To make an LPA, you must have a donor, attorneys, a
certificate provider, and witnesses.
The donor must be over 18, and have mental capacity. There
can be complications if a donor has property outside of England or Wales, or is
declared bankrupt or subject to a debt relief order.
To appoint attorneys, the correct paperwork must be
completed. You must have at least one attorney, and there is no upper limit as
to how many attorneys you can appoint. Before naming an attorney in an LPA, you
must ensure that the person agrees to act. You must also consider replacement
attorneys, and people to notify. Before you can use your LPA, you must register
it with the Office of the Public Guardian.
When selecting an attorney, consider;
- how many you want to appoint and if they’ll be able to work together
- whether you trust them to act in your best interests
- how well you know each other and how well they understand you
- how willing they’ll be to make decisions for you
- how well they organise their own affairs, such as how well they look after their own money
Attorneys do not have to be solicitors. Whilst the majority
of people choose close friends and family members for healthcare attorneys,
many choose professional legal experts for financial attorneys. Anyone over the
age of 18 with mental capacity can be an attorney, including; partner, husband
or wife, family friend, or a professional solicitor.
Attorneys can only make decisions on the donor’s behalf. Below are five basic principles attorneys must follow:
- Attorneys must assume that you can make your own decisions unless it is established that you cannot do so
- Attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps
- Attorneys must not treat you as unable to make a decision simply because you make an unwise decision
- Attorneys must act and make decisions in your best interests when you are unable to make a decision
- Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedoms but still achieves the purpose
Anyone who is currently bankrupt or has a debt relief order cannot act as an attorney on an LPA for financial reasons. Bankruptcy and debt relief orders do not affect health and welfare LPAs. Anyone on the Disclosure and Barring Services barred list cannot act as an attorney unless they are a family member and are not receiving a fee.
Attorneys can no longer act if they:
- lose mental capacity
- decide they no longer want to act as your attorney, disclaiming their appointment
- become bankrupt or subject to a debt relief order and were an attorney for a financial LPA
- were your wife, husband or civil partner but your relationship has legally ended – unless instructed by section 7 of the LPA form, confirming that they continue to be your attorney even if the relationship legally ends
If an attorney dies, or has to stop acting due to any of the reasons above, this can cause problems arising, especially if you have only chosen one attorney:
- if you appointed only one attorney, your LPA would stop working altogether
- if you’ve said your attorneys have to act ‘jointly’ for some or all decisions then they won’t be able to make those decisions
When appointing an LPA, you can decide whether decisions are made jointly, jointly and severally, or jointly for some decisions and severally for others. This option only stands if you have more than one attorney appointed. This is why it is vital to consider appointing replacement attorneys to protect your LPA.
Replacement attorneys are in place if one of your original attorneys can no longer make decisions on your behalf. Having replacement attorney’s means your LPA will still work, should an original attorney be no longer available to act.
A replacement attorney will step in if one of your attorneys:
- loses mental capacity
- decides they no longer want to act on your behalf, disclaiming their appointment
- was your wife, husband or civil partner but relationship has legally ended
- becomes bankrupt or subject to a debt relief order- applies to financial affairs LPAs
A replacement attorney can only act if the original attorney they’re replacing is permanently unable to make decisions for one of the reasons above. A replacement attorney cannot temporarily stand in for an attorney who is still able to act (e.g. while first attorney is on holiday.)
It is important to remember that an LPA is a legal agreement. It is therefore advisable to seek professional legal advice. The law states that attorneys must act in the donor’s best interests when making decisions. In order to do this, attorneys must:
- follow instructions the donor included in the LPA
- consider any preferences the donor included in the LPA
- help the donor make their own decisions as much as they can
- make any decisions in the donor’s best interests
- respect their human and civil rights
- obtain preferences and views from the donor, how the donor has behaved and what is written in LPA.
- assess whether decisions can be left for another time
- consult family and friends and anyone else who knew or understood a donor’s wishes and views
- Not make assumptions about the donors quality of life