Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a formal arrangement created by a deed in which one person (“the donor”) gives another person (“the attorney”) authority to act in his name and on his behalf at a time when the donor is mentally incapable. The donor must have the capacity and be over the age of 18 years when entering into this arrangement.

Many people wish to plan ahead and set out in advance what they would like to happen should they become unable to make decisions themselves in the future.

There are two different types of Lasting Powers of Attorney as follows:

• A Property & Affairs LPA which deals with an individual’s financial affairs such as selling the donor’s assets and managing their bank accounts
  and
• A Personal Welfare LPA which deals with an individual’s health and personal welfare such as where to live, day to daycare or having medical treatment. This can only be used once an individual has lost the capacity to make the decision themselves.

An Attorney is appointed to make decisions as if they were the Donor themselves. An attorney must act in the Donor’s best interest and adhere to the Code of Practice stipulated by the Office of the Public Guardian

A Lasting Power of Attorney must be registered with the Office of the Public Guardian (OPG) before it can be used as an unregistered LPA, will not provide the attorney or attorneys with any legal authority to make a decision for the Donor.  The Donor can register the LPA while they have the capacity and thereafter the Attorney can apply to register the LPA at any time.

COMMON QUESTIONS AND ANSWERS

I have already executed an Enduring Power of Attorney prior to the 1st October 2007, do I need to execute a Lasting Power of Attorney?

Where you already have a valid Enduring Power of Attorney in place, you are not required to execute a Lasting Power of Attorney, however, an Enduring Power of Attorney deals only with property and affairs and you may wish to execute a health and welfare LPA to cater for future health and welfare requirements.

I have read that I must obtain a Certificate of Capacity as part of the Execution process of the Lasting Power of Attorney. Who may provide such a certificate?

Only certain people can be certificate providers and details of who can and cannot do so are listed on the form. They include someone the Donor has known personally for two years or someone who, because of their relevant professional skills and expertise, considers themselves able to provide the certificate.  Professionals are entitled to make a charge for providing a certificate of capacity.

The certificate provider is someone who must speak with you privately to satisfy themselves that you understand the powers you are giving your Attorney(s) and that there has been no fraud or undue pressure on you to make the LPA.

NB: In the absence of a Lasting Power of Attorney or the previous version, the Enduring Power of Attorney, should a person lose capacity, the OPG will appoint a suitable deputy (as opposed to a Receiver under an Enduring Power of Attorney) which may not be the person who you would have preferred to deal with your affairs.