Lasting Powers of Attorney - FAQ's

A Lasting Power of Attorney (LPA) is a document which allows you to appoint someone (known as an attorney) to help you make decisions and manage your affairs in case you lose your mental capacity due to illness or an accident. There are two types of LPA:

LPA for health and care decisions - This LPA allows your attorney to make a variety of decisions on your behalf relating to how you are treated medically (eg. consenting to or refusing certain types of medical procedure) or cared for (eg. whether you stay at home or in a hospital).

LPA for financial decisions - This LPA gives your attorney the power to conduct your financial affairs, such as payment of bills or selling your property or other assets.

With both types of LPA, it is possible to restrict powers and provide guidance to take account of certain situations.

Why should I make an LPA?

If you lose your ability to make decisions as a result of illness (eg. dementia) or due to an accident, having an LPA in place means that you can rest assured that someone you know and trust will have responsibility for your affairs. Using an LPA in conjunction with a Living Will (see below) also allows you to specify instructions as to how you wish to be treated (eg. providing your hospital with a “do not resuscitate” order).

If you have not registered an LPA and you lose your mental capacity, a deputy may be appointed by the Court of Protection to look after your affairs.

Who can be your attorney for the purposes of an LPA?

One or more people over the age of 18 can act as your attorney under an LPA. You should choose someone you trust to handle your affairs - many people choose their spouse, partner or children. In respect of an LPA for financial decisions, you cannot appoint an attorney who is bankrupt. You can appoint substitute attorneys, in case one becomes unavailable to act on your behalf.

If you appoint your spouse or civil partner as your attorney, a divorce or dissolution of civil partnership will automatically end their appointment.

What is meant by lack of mental capacity?

According to the Mental Capacity Act, lacking mental capacity means that someone is unable to make a decision for themselves due to an impairment of the brain, either temporarily or permanently.

Can I cancel or object to an LPA?

As long as you still have mental capacity, you can cancel or change an LPA at any time. This needs to be done with a formal revocation.

You can object to the registration on an LPA by applying to the Office of the Public Guardian or Court of Protection.

What is the difference between an LPA and a Living Will?

A Living Will refers to either (or both) of the following:

Advance Statement

This is a written document which outlines your preferences for being looked after in the event that you lose your mental capacity. It may include religious beliefs (which may impinge upon your medical treatment), dietary requirements and where you would like to be cared for (eg. at home or in hospital). Although people treating you must take account of your Advance Statement, they are not legally obliged to follow it.

Advance Decision

If you want to ensure that you do not receive certain medical treatments in the event that you lose your mental capacity, you can specify the circumstances in which you would like to refuse treatment in an Advance Decision. Unlike an Advance Statement, this is legally binding.

Note that an LPA for health and care decisions can override your Advance Decision if it was made after an Advance Decision and if it expressly gives your attorney authority to make decisions about a specific treatment. Similarly, an Advance Decision made after an LPA for health and care decisions will take precedence.

How do I make an LPA?

An LPA can be made online or using paper forms. It must then be signed and witnessed before being registered with the Office of the Public Guardian (OPG). The private client team at W H Matthews & Co can help you to create and register both types of LPA. We can also prepare a Living Will and ensure that your LPA for health and care decisions is linked to any Advance Statement or Advance Decision.