23 Jun

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document which allows a person (otherwise known as the donor) to appoint someone they know and trust to make decisions on their behalf should they become unable to do so in the future. This person is called an attorney. Attorneys must always act in the best interest of the donor. At this stage, it is important to add that you must have the capacity to put an LPA in place.

What decisions can your attorneys make on your behalf with a Health & Welfare LPA?

Having this LPA in place will give your attorneys the authority to make the following decisions on your behalf:

  • Day-to-day decisions such as exercise, dietary requirements and care
  • Arrange medical or dental care
  • Make decisions on life-sustaining treatment
  • Where the donor lives, i.e. relocation into a care home or sheltered accommodation.

The LPA will allow you to identify any preferences you want your attorneys to know. Preferences are non-binding wishes that you would like the attorneys to keep in mind when making decisions on your behalf. We have set out some examples below:-

  • "I would like my pets to live with me for as long as possible."
  • "If I go into a care home, I’d like to take them with me."
  • "I prefer to live within 5 miles of my sister."
  • "I would like to have regular haircuts and manicures."

You can also set out instructions in the LPA that are legally binding and that your attorneys must follow. We have set out some examples below:-

  • “My attorneys must ensure I am only given vegetarian food.
  • My attorneys must not decide I am to move into residential care unless, in my doctor’s opinion, I can no longer live independently.”

When does it come into effect?

A Health and Welfare LPA will only come into effect once the donor loses mental capacity.

What is the cost of registering an LPA, and what is the turnaround time?

It can only be used once registered with the Office of Public Guardian (OPG). A registration fee will be payable to the OPG when the LPA is submitted to them. The current cost is £82 per LPA. You may be eligible for fee remission if you are on a low income or receive benefits. An additional form (Form LPA120) will need to be completed if you are applying for reduced fees. Registering your LPA with the OPG can take up to 20 weeks or possibly longer, depending on the volume of applications they receive, so it is important you register your LPA as soon as possible.

What Happens if you don’t have a Health & Welfare LPA?

It is a common misconception that a Health & Welfare LPA is only needed for older people. The reality is that capacity could be lost at any time due to a serious accident, stroke or even a degenerative condition such as Alzheimer’s. If you should lose capacity and there is no Health & Welfare LPA in place, your family and friends will not have automatic authority to make decisions on your behalf. Instead, others could make decisions for you, and the decisions made may not be what you would have wanted, e.g. Social Services decide where you live and what care you receive, or you may be resuscitated against your wishes. This can cause disagreements between family members and professionals about what is best for you. Having an LPA in place prevents those disagreements whilst ensuring loved ones who are best placed to look after you if you lose capacity are legally able to do so.

Is there a way for someone to make decisions on my behalf after I have lost capacity if I do not have a Health & Welfare LPA?

Yes. If capacity is lost and there is no LPA in place, a friend or family member can apply to the Court of Protection to be a Deputy for you and make decisions on your behalf. However, this long and expensive process can take 6 months or even more. Therefore, it is cheaper and more effective to have an LPA in place instead.

Written with acknowledgement to Manisha from the SWW Technical Advice Team  

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