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.

Financial decisions include:

  • 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.

Healthcare decisions include:

  • 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 capacity.

Requirements for 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.

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