ARBD Legal Issues - Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document that allows another person in authority to make a decision on your behalf.

Lasting Power of Attorney

The appointed person can manage your finances for you in the future if you reach a point when you are unable to continue making decisions for yourself. This is also applicable for making decisions about your health and welfare, and can be the same attorney as your finances or someone else.

It is important to know that there are two separate Lasting Powers of Attorney, and that you can have one or both in place.

1. Lasting Power of Attorney for Property and Affairs

This covers giving the attorney the right to make decisions about property and affairs (including financial matters). Once registered, the attorney is allowed to make all decisions about property even if you still have capacity to make decisions for yourself.

It can be specified in the Lasting Power of Attorney document that it should only apply when you no longer have capacity.

2. Personal Welfare Lasting Power of Attorney

This is where the attorney can make decisions about personal welfare, which can include healthcare and medical treatment. This can only be used at a time when you are deemed to lack capacity to make a specific welfare decision.

When making decisions your attorney must follow the Mental Capacity Act 2005. They must:

  • Act in your best interests.
  • Consider your past and present wishes.
  • Not take advantage to benefit themselves.
  • Keep all of your money separate from their own.

The Office of Public Guardian (OPG) will investigate any concerns if it is felt that the attorney is taking advantage and may pass on cases to the Court of Protection.

Only adults aged 18 or over can make an LPA, and they can only make an LPA if they have the capacity to do so. For an LPA to be valid:

  • The LPA must be a written document set out in the statutory form prescribed by regulations.
  • The document must include prescribed information about the nature and effect of the LPA (as set out in the regulations).
  • You must sign a statement saying that you have read the prescribed information (or somebody has read it to you) and that you want the LPA to apply when you no longer have capacity.
  • The document must name people (not any of the attorneys) who should be told about an application to register the LPA, or it should say that there is no-one you wish to be told.
  • The attorneys must sign a statement saying that they have read the prescribed information and that they understand their duties – in particular the duty to act in your best interests.
  • The document must include a certificate completed by an independent third party, confirming that:
    • In their opinion, you understand the LPA’s purpose.
    • Nobody used fraud or undue pressure to trick or force you into making the LPA.
    • There is nothing to stop the LPA being created.

An LPA must be registered with the OPG before it can be used. An unregistered LPA will not give the attorney any legal powers to make a decision for you. Either you can register the LPA while deemed to have capacity, or the attorney can register the LPA at any time. There is a fee for registering the LPA; you may be exempt from having to pay. The OPG can advise you with regard to fees.

You don’t have to seek legal advice as all forms are available from the OPG, but you may wish to seek advice from a legal adviser with experience preparing them.

The OPG customer service provides free booklets and can be contacted on:

Telephone: 0300 456 0300

Email: customerservices@publicguardian.gsi.gov.uk

Website: www.justice.gov.uk/about/opg

This fact sheet was written by our predecessor organisation Alcohol Concern with the support of Garfield Weston Foundation.

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