What is lasting power of attorney?

There are two types of LPA:

• A Property and Financial Affairs LPA, which allows your appointed attorney to deal with your property and financial matters on your behalf. It can be used as soon as it’s registered with the Office of the Public Guardian (OPG), provided the donor (the person granting the power) consents. 

• A Health and Welfare LPA, which allows your attorney to make welfare and healthcare decisions on your behalf. This includes decisions on medical treatments, as well as living arrangements. It only comes into effect if the donor loses mental capacity, ensuring their well-being remains a priority. 

When and why to set up a 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. Here’s what they must adhere to:

1. Respect your mental capacity: Your attorney should always assume that you have the ability to make your own decisions, unless there is clear evidence to suggest otherwise. They must not jump to conclusions about your capacity and should give you every chance to make your own choices. 

2. Support you to make your own decisions: Wherever possible, your attorney should help you make decisions for yourself rather than taking over. This might mean giving you more time to process information, explaining things in a simpler way, or offering practical support to guide you.

3. Don’t assume mental capacity is lost due to ‘unwise’ decisions: Making a choice that others disagree with doesn’t mean you lack capacity. Your attorney must respect your right to make decisions that might seem unusual, risky, or unconventional. As long as you have the mental capacity to make the decision, your attorney must respect it, even if it's not the choice they would have made. 

4. Choose the least restrictive option: If your attorney needs to make a decision on your behalf, they must consider all possible options and select the one that least limits your rights and independence. 

5. Act in your best interests: Every action and decision made by your attorney must be in your best interests. This involves taking into account your past wishes, feelings, beliefs, and values. They must also consider the views of family members, friends, or anyone else who may be involved in your care. Weighing all these factors ensures that decisions are thoughtful, balanced, and focused on your overall well-being. 

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.