Lasting power of attorney
What is lasting power of attorney (LPA)?
A lasting power of attorney (LPA) is a legal document that gives a trusted person or people (known as attorneys) the authority to make decisions on someone else’s behalf if they lose the ability to make decisions for themselves. It’s an essential tool for planning ahead, offering reassurance that personal wishes will be followed and important matters will be taken care of by someone chosen carefully.
There are two types of LPA:
When and why to set up LPA
Establishing a lasting power of attorney can take upwards of 5 months from start to finish, so it’s wise to plan ahead. While it may feel like a difficult subject to discuss with your loved one, doing so whilst they still have full mental capacity ensures their wishes are legally documented and understood by all involved. Early preparation can prevent unnecessary stress later on.
By starting the process early, you have time to discuss important details, such as the scope of the attorney’s authority and the conditions under which it should be used. Having an honest and open conversation sooner rather than later allows everyone to be prepared for the unexpected.
Choosing an attorney
Selecting the right person to act as your attorney is one of the most important decisions you’ll make when setting up a LPA. This person will have significant control over your health, welfare, and finances if you become unable to make decisions yourself. For this reason, careful consideration should be given to this decision.
The attorney(s) should be trustworthy and have the knowledge and characteristics to make decisions in your best interest. For most, this often means appointing a close friend or family member. However, an alternative option is to appoint a professional attorney instead, such as a solicitor. It’s also advised to designate successors, should your original attorney be unable to fulfil their duties in the future. This ensures your wishes can continuously be fulfilled.
Guiding principles your attorney must follow
Your attorney must act according to a clear set of principles designed to protect your rights, dignity, and independence as outlined in the government's Mental Capacity Act Code of Practice. These principles ensure that every decision made on your behalf is fair, thoughtful, and in line with your best interests and wishes.
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When to arrange lasting power of attorney
The process for establishing LPA can take upwards of 20 weeks, so it’s always best to plan ahead. Whilst it’s a difficult conversation to have, setting up power of attorney whilst your loved one still has mental capacity ensures their wishes are legally documented and prevents issues arising further down the line. Early discussions can ensure you’re all on the same page regarding how and when you want power of attorney to be given and used, adding peace of mind for all involved.
You may think of waiting until there’s a clear decline in mental capacity before starting the process. However, this could potentially lead to complications or delays. Depending on the rate of decline and your loved one’s mental capacity, you might be required to appeal to a court of protection to obtain LPA instead, which can be both a time-consuming and costly process. Having an honest and open conversation sooner rather than later allows everyone to be well prepared.
How to obtain lasting power of attorney
The LPA process may seem daunting at first, but breaking it down into manageable steps can help it feel less overwhelming. We’ve put together a step-by-step guide, with each step designed to ensure your loved one’s wishes are respected whilst providing peace of mind for the family.
What happens if I lose mental capacity before appointing a LPA?
If you lose mental capacity and have not set up a lasting power of attorney, your loved ones may face significant challenges in supporting you. Without an LPA, no one automatically has the legal right to make decisions about your health, welfare, or finances - not even your partner or children. Instead, family members must apply to the Court of Protection to be appointed as a deputy, which can be a lengthy, costly, and emotionally difficult process. Unlike an LPA, where you get to choose who you trust to act on your behalf, the Court of Protection decides who takes on this role, and it may not be the person you would have chosen yourself. In the meantime, essential decisions about your care, daily routine, or medical treatment could be delayed, creating unnecessary stress for everyone involved.
Without an LPA in place, social workers or medical professionals may be called upon to make decisions on your behalf, using their judgment about what they believe is in your best interests. While these professionals have good intentions, their decisions may not reflect your personal wishes or what your family knows you would have wanted.
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