Lasting Power of Attorney

The Mental Capacity Act & its Code of Practice

The Mental Capacity Act (2005) protects people who may not be able to make some decisions for themselves because of, for example;

  • Dementia
  • Learning Disabilities
  • Mental Health Problems
  • Stroke or head injuries

It covers people living in England & Wales only and provides a legal basis for how other people can make decisions on their behalf. It allows them to plan in advance for other people to make decisions on their behalf at a point in time when they may lose capacity to do so themselves.

The Act covers decision making about a person’s;

  • Property & Financial Affairs
  • Health & Welfare

Lasting Power of Attorney – Property and Financial Affairs

A Property and Affairs Lasting Power of Attorney (LPA) allows you to plan ahead by choosing one or more persons you trust or a professional such as a Trust Corporation (your Attorney’s) to make decisions and take appropriate actions on your behalf regarding your property and financial affairs.

Your Attorney or Attorney’s can manage your finances and property whilst you still have capacity as well as when you lack capacity. For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income.

This might be for lots of reasons: you might find it difficult to get about or be housebound or may find talking on the telephone difficult, or you might be working or living abroad for long periods of time.

You can decide what power and the extent of the power to give your Attorney(s) when making decisions about any or all of your property and affairs matters. This could include paying your bills, collecting your benefits or selling your house.

This type of LPA does not allow the person(s) you have chosen (your Attorney) to make decisions about your personal welfare. If you want someone to be able to make personal welfare decisions on your behalf you will need to make a Personal Welfare LPA.

Lasting Power of Attorney – Health & Welfare

A Personal Welfare Lasting Power of Attorney (LPA) allows you to plan ahead with regard to your personal healthcare and welfare by choosing one or more people to make decisions on your behalf.

These personal welfare decisions can only be taken by somebody else (a close friend or family member) when you lack the ability to make decisions regarding your treatment or other personal matters for yourself; for example if you are unconscious or because of the onset of a condition such as dementia.

The Attorney(s) you appoint to make personal welfare decisions will only be able to use this power once the LPA has been registered and provided that you cannot make the required decision for yourself.

You can decide to give your Attorney the power to make decisions about any or all of your personal welfare matters, including healthcare matters. This could involve some significant decisions, such as:

  • giving or refusing consent to particular types of health care, including medical treatment decisions; or
  • whether you continue to live in your own home, perhaps with help and support from social services, or whether residential care would be more appropriate for you.

You may wish your Attorney(s) to have the power to make decisions about ‘life-sustaining treatment’, if you do then you have to expressly give your chosen Attorney(s) the power to make such decisions.

You can also give your Attorney(s) the power to make decisions about day-to-day aspects of your personal welfare, such as your diet, your dress, or your daily routine. It is up to you which of these decisions you want to allow your Attorney to make.

Having a Lasting Power of Attorney gives you and your family control, without one your family would need to apply to the Court of Protection for what is known as a ‘Deputyship’ – this is cumbersome, long winded and takes control away from your family…in addition the average cost to set this up is between £2,500 – £3,000 with an annual fee of in excess of £300.