Lasting Power of Attorney

Losing the mental capacity to make sound decisions about aspects of our own lives is not something any of us like to think about happening. But it is important for everyone to plan for the future as, if this scenario occurs without any guidance, it can be difficult for loved ones to help.

A Lasting Power of Attorney (LPA) is the best way to ensure that those people you would want to make decisions for you have the authority to do so. This is even more important where there is a brain injury, as that person may require more support than others.

It is not correct to assume that a parent, spouse, partner or sibling has any automatic right to make decisions for their loved one.

What is a Lasting Power of Attorney (LPA) and why would somebody need one?

An LPA is a legal document that gives an individual (a “donor”) an opportunity to choose a person or people they trust (“attorneys”) to make decisions on the donor’s behalf if they lose mental capacity.

There are two types of LPA – one for Property and Financial Affairs and one for Health and Welfare. Anyone over 18 who has mental capacity can make an LPA.

What does ‘mental capacity' mean in this context?

Mental capacity means somebody is able to understand and make decisions for themselves. In this context, capacity means the donor must understand the process of making an LPA, why they are making it and the likely outcome.

Having a brain injury does not automatically mean that that person lacks mental capacity and, if someone does have a brain injury, making LPAs should be  considered as a priority.

What powers does it grant an attorney?

Each LPA ‘does what it says on the tin’.

Property and Financial Affairs LPAs

A Property and Financial Affairs LPA means an attorney can deal with any decisions regarding the donor’s property and finances, including things such as managing buying and selling the donor’s property, paying household bills and managing the donor’s bank account. It is possible for a donor to restrict the types of decisions an
attorney can make, or the donor can give the attorney authority to make all financial decisions on the donor’s behalf.

Health and Welfare LPAs

A Health and Welfare LPA means an attorney can make health and care decisions, such as whether a particular medical procedure is performed, what medication is administered and what level of care the donor requires (including, where relevant, what residential care setting the donor lives in).

As with the financial LPA, it is possible for a donor to restrict the types of decisions an attorney can make or give the attorney authority to make all decisions on the donor’s behalf. In particular with the Health and Welfare LPA, it is possible for a donor to give the attorneys special permission to make decisions about life-sustaining treatment.

What can’t an attorney do?

An attorney can only act in accordance with the power they have been granted by the LPA. Therefore, if the donor has limited the attorney’s power in any way, it follows that the attorney can only act within the constraints of those limitations.

A health and welfare attorney can never make decisions on behalf of the donor where the donor has the capacity to make those decisions themselves.

An attorney must always act in the best interests of the donor. To help the attorney with this, the donor can include instructions and guidance within the LPA documents, setting out their views and wishes. This can be very helpful for the attorneys.

Can I appoint substitute attorneys?

Within the LPA there is the ability to appoint attorneys who will act for you initially and replacement attorneys, who will act as a permanent replacement when the first named attorney can no longer act.

The appointment of multiple layers of attorneys can be very useful and ensure there is someone to act on an ongoing basis.

How should I choose my attorneys/replacement attorneys?

It is essential that you trust your attorneys and that they would be able to fulfil the role. There is no point appointing someone who does not have the skills/time to do the job or would not be able to deal with the additional responsibility.

If you are appointing more than one attorney, it is a good idea to appoint people who will be able to work together. There is no rule that your attorneys should get on, but experience shows that it can be very difficult if they do not.

Can you make changes to an LPA once it has been registered with the Office of the Public Guardian (OPG)?

The changes a donor can make to an LPA once it is registered are limited and any amendments need to be communicated to the OPG. If a donor simply wants to remove one of their attorneys (e.g. their spouse) but wishes for their other attorneys’ appointments to remain valid they would need to partially revoke their LPA.

If a donor wanted to remove all attorneys or “cancel” the LPA (to either make a new one or leave themselves without a valid LPA) they would need to revoke the LPA in its entirety. The OPG requires particular wording to be used for any revocation. They would then need to make a new LPA.

It is not possible for a donor to add further attorneys to an LPA once it is registered so it is important for clients to think carefully about who they would wish to appoint in the first instance and as replacements. In order to appoint new attorneys, the  donor would need to revoke the existing LPA and register a new one.

How long does it last?

In general, an LPA lasts from registration until any of the following occurs:

• the donor revokes the LPA in its entirety;
• all the attorneys and replacement attorneys have died, lost capacity or do not wish to act; or
• the donor dies.

It is therefore important for clients to choose attorneys who will hopefully survive their lifetime as, if there are no living attorneys or replacement attorneys, the LPA can no longer be used.