Lasting Powers of Attorney
In October 2007, two types of lasting powers of attorneys were introduced, the first being a financial welfare lasting power of attorney to enable you to appoint somebody, of your choice, to deal with and manage your finances should you become incapable of doing so.
The second being a lasting power of attorney for personal welfare, to enable you to appoint one or more persons to look after your well being should it be necessary, including making decisions concerning medical treatment. We have vast expertise in this area.
Personal Welfare Lasting Powers of Attorney (“LPA”)
Lasting Powers of Attorneys can be used to appoint attorneys to make decisions about personal welfare, which can include healthcare and medical treatment decisions. Personal Welfare LPA’s might include decisions about:
- Where the donor should live and who they should live with
- The donor’s day-to-day care, including diet and dress
- Who the donor may have contact with
- Consenting to or refusing medical examination and treatment on the donor’s behalf
- Arrangements needed for the donor to be given medical, dental or optical treatment
- Assessments for and provision of community care services
- Whether the donor should take part in social activities, leisure activities, education or training
- The donor’s personal correspondence and papers
- Rights of access to personal information about the donor, or
- Complaints about the donor’s care or treatment
The standard form for personal welfare LPAs allows attorneys to make decisions about anything that relates to the donors personal welfare. But donors can add restrictions or conditions to areas where they would not wish the attorney to have the power to act.
There are particular rules for LPAs authorising an attorney to make decisions about life-sustaining treatment.
A general personal welfare LPA gives the attorney the right to make all of the decisions set out above although this is not a full list of the actions they can take or decisions they can make.
However a personal welfare LPA can only be used at a time when the donor lacks capacity to make a specific welfare decision.
Before making a decision under a personal welfare LPA, the attorney must be sure that:
- The LPA has been registered with the Office of the Public Guardian
- The donor lacks the capacity to make the particular decision or the attorney reasonably believes that the donor lacks capacity to take the decisions covered by the LPA (having applied the Act’s principles), and
- They are making the decision in the donor’s best interests.
A personal welfare LPA allows attorneys to make decisions to accept or refuse healthcare or treatment unless the donor has stated clearly in the LPA that they do not want the attorney to make these decisions.
Even where the LPA includes healthcare decisions, attorneys do not have the right to consent to or refuse treatment in situations where:
- The donor has capacity to make the particular healthcare decision. An attorney has no decision-making power if the donor can make their own treatment decisions
- The donor has made an advance decision to refuse the proposed treatment. An attorney cannot consent to treatment if the donor has made a valid and applicable advance decision to refuse a specific treatment. But if the donor made an LPA after the advance decision, and gave the attorney the right to consent to or refuse the treatment, the attorney can choose not to follow the advance decision.
- A decision relates to life-sustaining treatment. An attorney has no power to consent to or refuse life-sustaining treatment, unless the LPA document expressly authorises this.
- The donor is detained under the Mental Health Act. An attorney cannot consent to or refuse treatment for a mental disorder for a patient detained under the Mental Health Act 1983.
LPAs cannot give attorneys the power to demand specific forms of medical treatment that healthcare staff do not believe are necessary or appropriate for the donor’s particular condition.
An attorney can only consent to or refuse life-sustaining treatment on behalf of the donor if, when making the LPA, the donor has specifically stated in the LPA document that they want the attorney to have this authority.
As with all decisions, an attorney must act in the donor’s best interests when making decisions about such treatment. This will involve applying the best interests checklist and consulting with carers, family members and others interested in the donor’s welfare. In particular, the attorney must not be motivated in any way by the desire to bring about the donor’s death. Anyone who doubts that the attorney is acting in the donor’s best interests can apply to the Court of Protection for a decision.
Property and Affairs Lasting Powers of Attorney (“LPA”)
A donor can make an LPA giving an attorney the right to make decisions about property and affairs (including financial matters). Unless the donor states otherwise, once the LPA is registered, the attorney is allowed to make all decisions about the donor’s property and affairs even if the donor still has capacity to make the decisions for themselves. In this situation, the LPA will continue to apply when the donor no longer has capacity.
Alternatively a donor can state in the LPA document that the LPA should only apply when they lack capacity to make a relevant decision. It is the donor’s responsibility to decide how their capacity should then be assessed. For example, the donor may trust the attorney to carry out an assessment, or they may say that the LPA only applies if their GP or another doctor confirms in writing that they lack capacity to make specific decisions about property or finances. Financial institutions may wish to see the written confirmation before recognising the attorney’s authority to act under the LPA.
The fact that someone has made a property and affairs LPA does not mean that they cannot continue to carry out financial transactions for themselves. The donor may have full capacity, but perhaps anticipates that they may lack capacity at some future time. Or they may have fluctuating or partial capacity and therefore be able to make some decisions (or at some times), but need an attorney to make others (or at other times). The attorney should allow and encourage the donor to do as much as possible, and should only act when the donor asks them to or make those decisions the donor lacks capacity to make. However, in other cases, the donor may wish to hand over responsibility for all the decisions to the attorney, even those they still have capacity to make.
If the donor restricts the decisions an attorney can make, banks may ask the attorney to sign a declaration that protects the bank from liability if the attorney misuses the account.
If a donor does not restrict decisions the attorney can make, the attorney will be able to decide on any or all of the person’s property and financial affairs. This might include:
- On behalf of people who are buying or selling property
- Opening, closing or operating any bank, building society and/or other account
- Giving access to the donor’s financial information
- Claiming, receiving and using (on the donor’s behalf) all benefits, pensions, allowances and rebates (unless the Department for Work and Pensions has already appointed someone and everyone is happy for this to continue)
- Receiving any income, inheritance or other entitlement on behalf of the donor
- Dealing with the donor’s tax affairs
- Paying the donor’s mortgage, rent and household expenses
- Insuring, maintaining and repairing the donor’s property
- Investing the donor’s savings
- Making limited gifts on the donor’s behalf
- Paying for private medical care and residential care or nursing home fees
- Applying for any entitlement to funding from Court of Protection NHS care, social care or adaptations
- Using the donor’s money to buy a vehicle or any equipment or other help they need
- Repaying interest and capital on any loan taken out by the donor
A general property and affairs LPA will allow the attorney to carry out any or all of the actions above (although this is not a full list of the actions they can take). However, the donor may want to specify the types of powers they wish the attorney to have, or to exclude particular types of decisions. If the donor holds any assets as trustee, they should get legal advice about how the LPA may affect this.
The attorney must make these decisions personally and cannot generally give someone else authority to carry out their duties. But if the donor wants the attorney to be able to give authority to a specialist to make specific decisions, they need to state this clearly in the LPA document.
Donors may like to appoint someone (perhaps a family member or a professional) to go through their accounts with the attorney from time to time. This might help to reassure donors that somebody will check their financial affairs when they lack capacity to do so.
It may also be helpful for attorneys to arrange a regular check that everything is being done properly. The donor should ensure that the person is willing to carry out this role and is prepared to ask for the accounts if the attorney does not provide them. They should include this arrangement in the signed LPA document. The LPA should also say whether the person can charge a fee for this service.
An attorney can only make gifts of the donor’s money or belongings to people who are related to or connected with the donor (including the attorney) on specific occasions, including:
- Births or birthdays
- Weddings or wedding anniversaries
- Civil partnership ceremonies or anniversaries, or
- Any other occasion when families, friends or associates usually give presents
If the donor previously made donations to any charity regularly or from time to time, the attorney can make donations from the person’s funds. This also applies if the donor could have been expected to make such payments. But the value of any gift or donation must be reasonable and take into account the size of the donor’s estate.
The donor cannot use the LPA to make more extensive gifts than those allowed under the Act. But they can impose stricter conditions or restrictions on the attorney’s powers to make gifts. They should state these restrictions clearly in the LPA document when they are creating it. When deciding on appropriate gifts, the attorney should consider the donor’s wishes and feelings to work out what would be in the donor’s best interests. The attorney can apply to the Court of Protection for permission to make gifts that are not included in the LPA (for example, for tax planning purposes).
We will provide a free initial consultation and appointments can be made evenings and weekends to suit your needs including home visits upon request.