A lasting power of attorney is a legal document enabling an individual (the donor) to appoint a trusted person to make decisions on their behalf, typically in case they become incapacitated to do so themselves.
This can be crucial for clients, offering reassurance that their finances will be managed according to their wishes if they can no longer make decisions independently.
Lasting powers of attorney were introduced in 2007 under the Mental Capacity Act, replacing the previous system of enduring powers of attorney.
There are two types of LPAs: one for property and financial affairs, and another for health and welfare. The property and financial affairs LPA allows the attorney to make decisions about an individual’s property, finances and other assets. The health and welfare LPA allows the attorney to make decisions about an individual’s personal care and medical treatment.
EPAs provided similar rights to a property and finance LPA; however, they did not cover health and welfare decisions. Although it has not been possible to create a new EPA since the Mental Capacity Act took effect, those signed and dated before 2007 can still be registered, and they continue to be applicable and valid.
For an LPA to be legally valid, it must be registered with the Office of the Public Guardian before it can be used, and the nominated individual must be aged 18 or older and have mental capacity to make informed decisions. This broadly means they understand the nature and effect of the document and are able to make decisions about their own affairs.
The donor has the option to appoint one or more people to serve as their attorney. These appointed attorneys can be given the authority to act in two possible ways: jointly, where they must make decisions together; or jointly and severally, where they can make decisions independently or together. Additionally, the donor can designate replacement attorneys who will step in if the original attorneys are unable to fulfil their duties, ensuring continuity in decision-making.
The first step is to obtain the LPA information pack and forms from the OPG. These can be completed by hand or pre-populated then printed using the online service on the government website (www.gov.uk).
Once completed with the details of the donor and attorneys, the forms also need to be signed by a “certificate provider”. This individual ensures the client understands the LPA and has not been coerced into signing. The certificate provider must be either someone who has known the client well for at least two years, or a professional such as a doctor, social worker or solicitor. It is important to note that partners or family members are not eligible to act as certificate providers.
The final step is to register the LPA with the OPG, though the LPA cannot be used until registration is complete, which can take several weeks. If the donor remains capable, they can continue making decisions after the LPA is registered, either alongside the attorney or independently.
