If someone has difficulties that mean they cannot make decisions anymore, they will need help managing their finances. Lasting Power of Attorney (LPA) is a legal document where someone (while they still have mental capacity) nominates a trusted friend or relative to look after their affairs if they lost capacity.
Your representative should only ever make a choice for you if you’re unable to make that specific decision at the time it needs to be made. For example, if you fall into a coma, your representative would start looking after your affairs. Yet if you wake from the coma, you should be able make to your own decisions again.
A Lasting Power of Attorney is a legal document that lets you (the ‘donor’) appoint people (known as ‘attorneys’) to make decisions on your behalf.
There are 2 types of Lasting Power of Attorney:
• health and welfare
• property and financial affairs
You can choose to make one type or both. You must be 18 or over and have mental capacity (the ability to make your own decisions) when you make your lasting power of attorney.
What is mental capacity?
Every day we make decisions about our lives. The ability to make these decisions is called mental capacity. People may not be able to make decisions some or all of the time, perhaps because they have a learning disability, dementia, mental health problem, brain injury or have had a stroke.
Who decides if someone has capacity?
The Mental Capacity Act 2005 says a person is unable to make a decision if they can’t do one of the following: understand information relevant to a decision; retain that information long enough to make the decision; use or weigh that information; or communicate the decision.
If you do not have mental capacity you may need a court-appointed deputy instead – A deputy is someone appointed by the Court of Protection to make decisions for someone who is unable to do so on their own.
Health and Welfare Lasting Power of Attorney
This allows you to choose one person or more to make decisions about things like:
• your daily routine (eg eating and what to wear)
• medical care
• moving into a care home
• life-sustaining treatment
This type of Lasting Power of Attorney can only be used when you’re unable to make your own decisions.
Property and Financial Affairs Lasting Power of Attorney
This lets you choose one person or more to make decisions about money and property for you such as:
• paying bills
• collecting your benefits
• selling your home
This type of Lasting Power of Attorney can be used as soon as it’s registered, with your permission.
How to make a Lasting Power of Attorney
• Choose your attorney
• Complete the forms to appoint them as your attorney. Click here for the forms
• Register your Lasting Power of Attorney with the Office of the Public Guardian (this can take up to 10 weeks). Click here to register
What to do next
The action to take depends on the situation. (We use the word ‘they’ below for simplicity, but, of course, you can set up a Power of Attorney for yourself as well.)
If they still have capacity
This is the best time to act. If the person still has capacity and would like to make arrangements in case they lose mental capacity, they can set up a Lasting Power of Attorney.
It takes up to 10 weeks to register and will only be used if and when they lose capacity, unless they specify otherwise on the application.
If they’ve lost capacity
If a spouse, relative or friend already has limited mental capacity, but didn’t set up Power of Attorney in advance, it gets more difficult. You need to become a deputy of the Court of Protection to make decisions on their behalf. Click here to see how to become a deputy
