For a person with a diagnosis of dementia, there may come a time when they are unable to make decisions about their care and their finances. A lasting power of attorney (LPA) is a legal document appointing one, or more, trusted people to be their attorney(s). An attorney is a person responsible for making decisions on their behalf.
There are two types of LPA. It is possible to draw up one, or both. The same attorney(s) can be appointed for both, or someone different can be appointed for each. They are:
Health and welfare, which appoints an attorney to make decisions regarding medical care, future care needs such as moving into a care home, and life-sustaining treatment. It can only be used once the person can no longer make their own decisions.
Property and financial affairs, which appoints an attorney to make decisions regarding managing a bank or building society account, paying bills, collecting benefits or a pension, or buying and selling a house. This can be used immediately if the person making it gives their permission.
What is the difference between an LPA and an enduring power of attorney?
LPAs were introduced by the Mental Capacity Act in 2005. Anyone who made a power of attorney document before this time would have drawn up an enduring power of attorney (EPA) instead. EPAs are still legally valid, but they only cover decisions about finances and property.
Why would someone need an LPA?
Many people with dementia will come to a point where they are unable to make decisions about their finances or care anymore. This is called loss of ‘mental capacity’. A person is judged to have lost mental capacity when they can no longer understand the information needed to make the decision, weigh the information up, retain the information for as long as is necessary to make the decision, and communicate their decision to others. Appointing an attorney in an LPA before the person with dementia loses mental capacity means that important decisions can still be made about their care and affairs once capacity is lost.
A health and welfare LPA will only come into effect once the person has lost the mental capacity to make that particular decision. Whether someone has the mental capacity to make a decision must be decided by a trained mental capacity assessor. This will usually be a health or social care professional. The assessment of whether a person has mental capacity to make a decision only covers that particular decision – for example, receiving medical treatment. This is because mental capacity can be temporarily lost, for example, while unconscious, sedated by medication, delirious through fever or infection etc.
A property and financial affairs LPA will come into effect as soon as it is registered, unless alternative instructions are stated in the LPA.
People in a civil partnership or marriage might assume their partner can deal with their finances and make decisions about their healthcare should they lose the ability to do so, but this is not necessarily the case. If someone has not drawn up an LPA when they are assessed to have lost capacity, and their partner or friend wants to make decisions on their behalf, they may have to apply to the Court of Protection to be appointed as the person’s Deputy. This can be a long, complex and expensive process, and it is advisable to speak to the Office of the Public Guardian on 0300 456 0300 beforehand. Setting up an LPA in advance is preferable.
There are other alternatives to a health and welfare LPA. These include an Advance Decision or an Advance Statement, otherwise known as a Living Will. A Living Will is a statement of a person’s wishes for the future and does not appoint an attorney.
How to set up an LPA
An LPA can only be set up by a person who has mental capacity. This means that they can understand information, weigh it up, retain the information for as long as is necessary to make the decision, and communicate their decision.
The steps are:
1. Choose an attorney
An attorney needs to be 18 or over. They could be a relative, a friend, a professional e.g. a solicitor, or a spouse or partner. The applicant should choose someone they trust, who manages their own affairs well, and who is happy to be the attorney.
It is possible to appoint the same person as attorney for both types of LPA. An attorney for an LPA for property and financial affairs cannot be subject to a Debt Relief Order or currently bankrupt.
The person applying for the LPA can have more than one attorney – for example, their children. If so, the attorneys can make decisions together (‘jointly’) or separately (‘severally’), or a combination of both in different circumstances. If jointly, both attorneys must always act together, agreeing all decisions and both signing documents. If jointly in some matters and severally in others, then the applicant can decide that certain decisions require all attorneys to agree, but in other decisions they can act independently. For example, the applicant might decide that all attorneys must agree to selling property or decisions about medical treatment, but they can decide independently of one another for day-to-day decisions such as diet or dress.
The implications of appointing on a joint or joint and several basis need to be thought through carefully. For example, if one of the attorneys appointed jointly dies, the joint power cannot be exercised by the surviving attorney alone, which may not be what is wanted.
2. Fill in the LPA form
A friend or solicitor can help the applicant or fill in the forms for them. The lasting power of attorney form can be filled in online at www.lastingpowerofattorney.service.gov.uk. The online form has an accompanying guide. The LPA form will still need to be printed out, signed and posted.
The form can be downloaded from www.gov.uk/power-of-attorney. Otherwise, copies of the forms can be requested from the Office of the Public Guardian on 0300 456 0300.
The forms need to be signed by:
The person making the LPA
The person being nominated as attorney
Witnesses to the signatures of the person making the LPA and the attorney
A ‘certificate provider’, who confirms the applicant is making the LPA by choice and understands what they are doing. This must be someone they have known for two years or more, or a professional person such as a doctor, social worker or solicitor. This can be the same person who witnesses the applicant’s signature.
Witnesses and certificate providers must be 18 or over. The person applying for the LPA cannot act as a witness.
If they wish, the person applying can name up to five people in the LPA who will be notified about it. The applicant will need to fill in another form – Form to Notify (LP3), available from the same places as above – and send copies to those people before they can register the LPA. They can post it or hand it to them. The named people are then given three weeks to register any concerns or objections. This helps to check that the applicant is not being put under pressure to make the LPA. Naming people to be notified is optional and the applicant does not need to fill in this part of the form if they do not want to.
3. Register the LPA
The paper form must be signed and sent to the Office of the Public Guardian. The address is on the form. Make sure you include the original LPA form and the fee. It costs £82* to register each LPA unless you get a reduction or exemption. This means it costs £164* to register both a property and financial affairs LPA and a health and welfare LPA [*as of April 2017].
There are two options for payment. If you choose to pay by credit or debit card, the Office of the Public Guardian will contact you to process the payment. Or you can make a cheque payable to ‘Office of the Public Guardian’ and write your name on the back. Send it to the Office of the Public Guardian with your forms.
A person with dementia can register an LPA if they have mental capacity. If mental capacity is lost after the forms are signed but before registering, the attorney can register the LPA. It is advisable to register as soon as the forms are filled in, so that any errors on the form can be picked up and corrected. If errors are discovered after the person is judged to have lost capacity, the LPA cannot be registered.
It usually takes between eight and ten weeks to register an LPA if there are no mistakes in the application. This includes a four week ‘cooling off’ period when anyone named in the form can change their minds about their involvement. The LPA cannot be used during this time. Once it is registered, the Office of the Public Guardian will send a Registration Notice to both the applicant and the attorney to let them know.
Once the LPA is registered
The attorney must follow the Mental Capacity Act when making decisions on behalf of the person with dementia. This means that they:
Must act in the person’s best interests
Must consider the person’s past and present wishes
Cannot take advantage of the person to benefit themselves
Must keep all of the person’s money separate from their own.
If an attorney fails to follow these rules, the LPA could be cancelled. The Office of the Public Guardian will investigate if an attorney is suspected of taking advantage of the person with dementia and if so, the attorney could be prosecuted.
It is possible for health professionals to override the views of the attorney(s) in the case of the Health and Welfare LPA, if they believe the person’s best interests are not being met. In this instance, the attorneys and the person’s friends and family have the right to object to the health professionals’ decisions. If a person with dementia is detained under the Mental Health Act 1983, this will override the authority of the person’s attorney.