A Lasting Power of Attorney (or LPA) is a legal document that lets you choose trusted people to make decisions on your behalf in England and Wales. There are two types of LPA; one for financial decisions and one for health and care decisions, you can make one or both.
Legal jargon can make things seem complex and daunting. Charlotte Cordell explains the key terms and phrases: –
The Two Types of LPA
Property and Finance
This type of LPA covers decisions such as managing your bank accounts; making or selling investments; paying your bills and buying or selling your house.
Health and Welfare
This type of LPA covers decisions such as what medical treatment you receive; where you live and day-to-day matters such as diet, dress or daily routine.
The Donor is the person who makes the LPA giving the decision-making powers to someone else. The Donor must be over 18 and have mental capacity to make an LPA.
An Attorney is a trusted person over the age of 18 who has been chosen by the Donor to make decisions. It could be a family member, close friend or even a professional, such as a Solicitor. The Donor must appoint at least one Attorney and whilst there is no upper limit, having too many Attorneys could make things difficult as they will need to be able to work together.
Someone chosen by the Donor to step in if one or more of the original Attorneys can no longer make decisions. For example, if the Attorney had lost mental capacity or died. This would be a permanent replacement and not someone to step in if an Attorney was temporarily unavailable.
Person to Notify
The Donor can choose up to five people to be notified before the LPA is registered. Some people choose family or close friends. It is not a legal requirement to notify anyone if the Donor decides not to.
An independent person who is over the age of 18 and either someone who has known the Donor well for at least two years or the Donor’s Doctor, Solicitor or other professional. The Certificate Provider confirms that the Donor understands what they are doing and that nobody is forcing them to make an LPA.
An independent person must witness the Donor, the Attorneys and any Replacement Attorneys signing the LPA.
The Office of the Public Guardian (OPG)
The OPG oversees LPAs. Before an LPA can be used by the Attorneys, it must be registered with the OPG.
Other Common Words, Phrases and Points to Consider
The Attorneys must always act in the best interests of the Donor and there are five key principles which Attorneys have to follow.
Deed of Revocation
The Donor can cancel their LPA at any time as long as they have mental capacity. If the LPA has been registered with the OPG, a Deed of Revocation is required.
Life Sustaining Treatment
This means care, surgery, medicine or other help from doctors that is needed to keep someone alive. It could include but is not limited to a serious operation, cancer treatment, organ transplant, artificial nutrition and/or hydration.
Mental capacity means the ability to make and understand a specific decision at the time it needs to be made.
The Donor can tell the Attorneys what they would like them to think about when they make decisions.
The Donor can tell the Attorneys what they must do.
*Complicated or badly worded instructions or preferences can make an LPA unworkable and should therefore be used with caution.
How Should Attorneys Make Decisions?
If the Donor has chosen more than one Attorney then the Donor must state how the Attorneys should make decisions. Most people choose “Jointly and Severally” because it is the most flexible and practical.
The Attorneys must always make all decisions together. If the Attorneys cannot agree then the LPA will not work. Appointing Attorneys jointly will also have a knock-on effect if a Replacement Attorney needs to step in.
Jointly and Severally
The Attorneys can make decisions on their own or together. Any action taken by an Attorney alone is valid but they must always act in your best interests.
Donors may choose to appoint their Attorneys to act jointly for some decisions but jointly and severally for others. The LPA must be very clear on which decisions are to be dealt with in what way. If the Attorneys cannot agree on a joint decision then the LPA will not work.
Get in touch
If you are thinking about making a Lasting Power of Attorney, please contact us to arrange a free 15 minute, no obligation telephone consultation with one of our experts where we can discuss what is involved and the likely cost. Call us on 01323 727321 or email us at firstname.lastname@example.org.
Please note that this article does not constitute legal advice. You should always speak to a legal professional to discuss your circumstances and consider your options.