What is a lasting power of attorney and how will it help?
A lasting power of attorney allows someone else, such as a family member or carer, to make decisions on behalf of a person who has lost the capacity to make specific decisions themselves.
It can be very useful for a carer to be an attorney, because this gives carers more rights to make decisions for the person they care for.
But the person must be able to make the decision to grant the power of attorney. If the person you care for does not have the capacity to do this, it is not an option. Some people grant a lasting power of attorney to their partner, son or daughter when they are getting older or when they have had a diagnosis of dementia, but it is in its early stages when they can still make major decisions. Lasting Powers of Attorney are known as ‘LPAs’.
There are two types of LPA: financial LPA and personal welfare LPA.
A financial LPA lets the attorney manage the person’s money. It can relate to some of the person’s money or all of it - that will be up to the person who is granting the power.
The person granting the power can also decide if they want the option of their attorney managing their money even if they still have capacity to make these decisions themselves, or if they want their attorney to manage their money only if they no longer have the mental capacity to do it themselves.
Sometimes it is useful to have an LPA in place even when the person still has capacity to manage their own money, for instance if the person is in hospital for a long time and cannot get to the bank.
If you are a financial attorney, you can only make the decisions about the person’s money and property that it states in the LPA, not any others.
A personal welfare LPA lets the attorney make decisions about health treatment and about community care. It can cover all aspects of health and care or just some, with the decision resting with the person granting the power.
A personal welfare LPA cannot come into effect until the person has lost the capacity to make decisions about health and social care. Personal welfare attorneys do not have any right to manage the person’s money.
The person granting the power has to complete a form. There are separate forms for a financial LPA and for a personal welfare LPA.
Someone called a ‘certificate provider’ has to certify that the person understands what they are doing and has not been put under any pressure to complete the form. The certificate provider must be either a professional (such as a solicitor, a doctor or a social worker) or someone who has known the person for at least two years (as long as that person is not a member of the family of the person or the attorney and there is no conflict of interest).
The forms and instructions about how to fill them in are on the website of the Public Guardianship Office. They are quite long and detailed, but you do not necessarily need a solicitor to complete them.
Before the LPA can be used, the completed forms have to be sent to the Public Guardianship Office to be registered. An attorney cannot make decisions using the power until the registration is completed. There is a fee of £120 for each LPA, but if the person making the LPA is on some specified means-tested benefits, the fee may be waived.