What is a Lasting Power of Attorney?

The Mental Capacity Act (2005) protects people who may not be able to make decisions for themselves because of issues such as:-

  • Dementia
  • Learning Difficulties
  • Mental Health Problems; and
  • Stroke or head injuries

The Act covers people in England and Wales and allows people to plan in advance for other people to make decisions on their behalf when they may lose the capacity to make decisions themselves. 

The Act is supported by a Code of Practice which gives details and guidance as to people’s roles and responsibilities when making decisions on someone’s behalf.  

A Lasting Power of Attorney is a legal document which enables you to chose who you wish to make decisions on your behalf, should you lack the mental capacity to be able to make decisions on your own behalf. 

There are two types of Lasting Powers of Attorney :-

  1. Property and Financial Affairs – this type of Power allows decisions to be made regarding your finances, including paying bills, dealing with your bank, collecting benefits and paying your bills.  It can also be used to sell your house and deal with all your financial affairs. 
  2. Health and Welfare  - this type of Power allows decisions to be made regarding treatment, care and medication and where you live. 

A Lasting Power of Attorney can only be made by completing a Lasting Power of Attorney Form.  The Power is completed in advance of someone losing mental capacity and it can be kept until it is needed.  The Power needs to be registered with the Office of Public Guardian.  The Office of the Public Guardian (OPG) is part of the Ministry of Justice and they manage the registration of all Lasting Powers of Attorney and maintain the Register of Lasting Powers.
 

Points to Consider When Making a Lasting Power of Attorney.

A Lasting Power of Attorney is a powerful document and you should carefully consider the following points before deciding to proceed :-

a. Who you wish to appoint to act as your Attorney?  You can appoint one person, more than one person (in which case you need to decide whether they must all act together in all decisions or whether they can act independently, or indeed whether they can act together in relation to some decisions but independently in relation to other decisions).  We can guide you with these decisions and discuss the various options with you.
  
b. Whether you wish to appoint a replacement Attorney who would act in the event that your main Attorneys were unable or unwilling to act?  This can be useful in some circumstances, particularly if your Attorney becomes incapable.  Again we can discuss these options with you.
 
c. The extent of Power you wish to grant to your Attorney?  It is possible to include restrictions and guidance for your Attorney to follow (they will be bound by the terms of the Mental Capacity Act and the Code on Conduct in any event) but it is possible to make further specific provisions within the Power.  We can advise you as to the best way forward in this regard.

d. Who will act as your Certificate Provider?  To complete the process for creating a Lasting Power of Attorney it is necessary for (at least one) independent person to provide a certificate to confirm they are happy you are fully aware of the nature and extent of the Powers you are granting when signing the Lasting Powers and that you are competent and capable to make the Powers.  There are two types of Certificate Providers – category A and category B and we can provide you with further details regarding the two types of providers.  We are also able to assist in providing the necessary certificates if you wish to instruct us to do so.  We can also discuss with you the other requirements for a valid power to be created, particularly notification of a named individual of the registration of the Power (only one person is required if there is at least one Certificate Provider).
 

What Next?

We would be happy to discuss matters further with you regarding the creation of either type of Power.  Please contact our friendly Wills and Probate Department who can offer further assistance and guidance, and work with you to ensure the Powers are validly created, registered and in place in case they are needed in the future.

We can provide you with a competitive quote for completing the work and timescales for registration of the Power with the OPG. Due to the popularity of the Powers there is currently quite a long waiting period for Powers to be registered with the OPG.

For further information about what to do if there is no Lasting Power of Attorney in place, please see our related page relating to Court of Protection, Appointment of Deputies and Registration of Enduring Powers of Attorney