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Lasting Power of Attorney

A Lasting Power of Attorney, or LPA, is a Legal Document under which you (‘the Donor’) can appoint one or more persons (‘Attorneys’) to act on your behalf. Unlike a normal Power of Attorney which will cease to have effect when the Donor loses capacity an LPA will continue to be effective should the Donor lose the mental capacity to make such decisions at some future time.

Why Make An LPA?

It allows the Donor to specify in advance trusted family, friends or professionals to make decisions for them, should they ever lose the capacity to make those decisions themselves.

If they lost capacity and had no LPA, the Court would be required to either make the decision or appoint someone to make decisions for that person.

There is no inherent authority for the family of someone who loses capacity to manage their affairs which can result additional concern and worry for the family.

How Can Hart Scales & Hodges Help?

If you would like to create a Lasting Power of Attorney, we can discuss this with you and draft the necessary documents.


We will come to see you in your home so as to avoid the need to travel to see us if required.


We are able to act as Attorneys if the Donor wishes.


We are able to act as Certificate Providers.


We can advise the Attorney(s) on their duties, obligations and powers. We can also help you with any applications you are required to make to the Court of Protection.


We can apply to the Court of Protection on behalf of the Donor or Attorney to register the Lasting Powers of Attorney.


We are also able to assist people with registering the old Enduring Powers of Attorney, which are still valid provided they were created before 1st October 2007.


Two types of LPA

Since 1st October 2007 the Mental Capacity Act 2005 created two types of Lasting Powers of Attorney (LPAs):


Personal Welfare LPA

This is a new development and under this power the Attorney can make decisions about the Donors health and Welfare such as:

  • Giving or refusing consent to medical treatment;
  • Where the Donor will live and with whom;
  •  Being able to access personal information such as medical records;
  • Day to day decisions such as what the Donor wears, what they eat and how they spend their day.

Property & Affairs LPA

This replaces the old ‘Enduring Power of Attorney’ and like its predecessor allows the Attorney to make decisions relating to the Donor’s property and affairs such as:

  • buying or selling property,
  • managing investments,
  • running a business,
  • accessing and using your banks accounts, and obtaining financial information.

How to Create an LPA

The LPA is created using a prescribed form of Deed in which the Donor sets out their wishes. The Document will explain who they wish to be their Attorney(s) and how they are to act. Please see our Guide on Creation and Registration of LPAS for further information


Attorneys

For a Property and Affairs LPA up to 5 Attorneys may be appointed as opposed to 2 for Health & welfare LPAs. If appointing more than one the Donor can specify how the Attorneys must act, which can be either:

  • Jointly – i.e., the Attorneys must act together and make joint decisions;
  • Jointly and severally – i.e., each Attorney can act individually or with the other Attorneys; or
  • Jointly in respect of some matters, and jointly and severally in respect of others
  • For a Health and Welfare LPA one or two Attorneys may be appointed
  • In both cases the Attorneys must be people that the Donor trusts completely to act in their best interests at all times

Restrictions & Obligations

The Donor can specify in the LPA any matters which they do not wish their Attorneys to have the power to make decisions about

Equally the Donor may place additional duties on their attorney(s)

The law places some restrictions on the powers of Attorneys by default such as:

  • They may not enter into a marriage for the Donor
  • They may not vote on the Donors behalf
  • They may not make a new Will for the Donor
  • Duties of the Attorney(s)

The Attorneys must:

  • Act in the donor’s interests at all times
  • Comply with the Principals of the Mental Capacity Act 2005
  • Comply with any restrictions or conditions specified in the LPA
  • Assist and encourage the Donor to make as many decisions for themselves as possible
  • Discuss the Donor’s wishes and feelings as to how you would wish them to act
  • Bear in mind the Code of Practice in their dealing on the Donor’s behalf.

When to Make an LPA

Many people do not consider what will happen to them when they lose capacity. Unfortunately by the time that they start to lose capacity to run their own affairs it is too late to create the LPA

Unlike the old Enduring Power of Attorney, before either type of LPA can be used, it must be registered with Office of the Public Guardian. However the LPA does not have to be registered immediately, therefore LPA’s should be created sooner rather than later and held by the Donor until such time as they wish it to be or need it to be registered.

If having created the LPA the Donor changes their mind about who they wish as Attorneys or wishes to cancel the LPA, then even if registered they may cancel it at any time provided they have capacity to understand the ramifications of their decision.