What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that enables an individual (the ‘donor’) to appoint one or more people (known as ‘attorneys’ or ‘donees’) to make decisions on their behalf. Unlike a general power of attorney or a trustee power of attorney, an LPA continues to be effective after the mental incapacity of the donor.

Creating a valid LPA

A valid LPA must satisfy the following criteria:

  • The document must be in the prescribed form and comply with the requirements of the Mental Capacity Act 2005
  • The attorney must be validly appointed and can be a spouse or partner, relative, friend or solicitor and be someone who you trust to make important decisions on your behalf
  • The document must be validly executed by all parties
  • The document must be registered in accordance with the Act
  • At the time of execution of the LPA form, the donor must be 18 years old or older and must have capacity to execute the document

If a document fails to satisfy any of these criteria, it will not confer any authority on the purported donee.

The types of Lasting Power of Attorney

There are two forms of LPA which cover separate issues.

LPA for Health and Welfare – This allows the Donor to give power to their attorneys to make decisions about the donor’s healthcare and personal welfare. The attorneys can only make decisions if the donor has lost mental capacity. The LPA will allow the attorneys to make decisions about the Donor’s care and can include provision for the attorneys to make decisions about life sustaining treatment of the donor.

LPA for Property and Financial affairs – This provides the attorney with the authority to make decisions about the Donor’s property and financial affairs. A Donor can limit the powers given to the attorneys. The Donor can decide if the LPA becomes effective once registered with the Office of Public Guardian or is delayed until the Donor has lost mental capacity.

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Charles Goodbody Partner Head of Family and Private Client Warminster

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