What Is a Lasting Power of Attorney?
A lasting power of attorney (LPA) is a legal document that gives one person the authority to make decisions on someone’s behalf. This must be applied for when an individual has the capacity to make the decision.
This is generally given to a family member, or a solicitor, and gives permission for this nominated person to act on a person’s behalf at such a time in the future that they are unable to act or make decisions for themselves.
An LPA is only legally valid when it is registered with the Office of the Public Guardian, the government agency responsible for protecting and helping to manage the affairs of people who lack mental capacity.
What Are The Types of Lasting Power of Attorney?
There are two different types of LPA:
- Property and Financial Affairs LPA
- Health and Welfare LPA
A property and financial affairs LPA has the authority to deal with paying bills, buying and selling property and managing bank accounts and investments. This LPA can be called upon at any point, and the individual ay ask their LPA to attend any matters of property and finance at any point, even if they still have capacity.
A health and welfare LPA covers decisions about health and care, such as treatment or moving into full-time care. This option can only be used if the individual no longer holds the capacity to deal with such matters themselves.
What Is The Role Of A Lasting Power of Attorney?
As part of the Mental Capacity Act (2005), there are some very important principles which are always taken into consideration when it comes to LPAs and an individual’s capacity to make decisions.
An individual is always assumed to have capacity unless deemed otherwise through an assessment process.
Capacity is variable and is time and decision specific, which means that . If the individual is being asked to make a complicated decision, their capacity must be assessed as soon as possible, before they are asked to consider the decision being made.
If an individual is assessed as lacking capacity to make a decision, then the LPA will be called on.
In either situation, whether relating to property and financial affairs or health and welfare, the main responsibility of an LPA is to make decisions in the best interests of the individual. ‘Best interests’ means that the decision being made is what is best for the person, and not for anyone else, such as staff, other care home residents or family.
An LPA can:
- Consider what the individual would want in the given situation.
- Make sure that the individual’s previously agreed wishes are shared.
- Give or refuse authority to life-sustaining treatment.
- Be part of the decisions that are in the individual’s best interests.
What Can an LPA NOT Do?
There are many misconceptions about the authority of an LPA, and what they can and cannot do when acting on behalf of the donor.
An LPA cannot:
- Make decisions when the donor still has capacity, unless in the case of an LPA for property and financial affairs, the individual has asked the LPA to act on their behalf.
- Make assumptions based on age, behaviour, condition, or appearance.
- Insist on treatment that may not benefit the individual.
- Make decisions that restrict the individual’s freedom.
Lasting Power of Attorney FAQs
How do you know when to appoint an LPA?
An individual must appoint a lasting power of attorney or attorneys while they still have the capacity to do so. Capacity is something which must be assessed, and it’s important to remember that a person is always assumed to have capacity, until proven otherwise.
A loved one has dementia, do they have the mental capacity to make decisions?
A dementia diagnosis does not automatically result in that person no longer having the capacity to make their own decisions.
As dementia is a progressive condition, a person will not immediately be unable to make decisions, this must be assessed by a competent and appropriately qualified practitioner.
My loved one wants to remain at home, but I believe they need to move into care, what should I do?
If a person is deemed to have capacity, they have the right to make decisions about their own life, even if you or others think a decision is unwise.
Once an individual has been deemed to no longer have the capacity to make these decisions, an LPA for health and welfare can then become involved regarding decisions around care, treatment and living situations.
Who can be a lasting power of attorney?
Generally, people choose either a close family member or a solicitor to be an LPA. However, to be made an LPA you must meet the following criteria:
- Be over the age of 18
- Have the mental capacity to be made an LPA and understand the nature and effect of being appointed.
Most importantly. an LPA must be willing to act in the best interests of the individual requesting it and must follow the principles set out in the Mental Capacity Act 2005 when making decisions.