James Scotney, Town and Country Law director, recognises all too well the importance of putting in place a Power of Attorney, having experienced a family member being diagnosed with dementia. This article will take a closer look at Legal Powers of Attorney (LPAs) and how they enable people to appoint trusted individuals to protect their best interests by making decisions on their behalf.
An LPA is a legal document through which a person can appoint one or more trusted individuals to serve as attorneys. The person making the LPA is known as the ‘donor’. Attorneys are responsible for making decisions on the donor’s behalf, prioritising the donor’s best interests at all times.
In England and Wales, there are two types of LPA:
- Property and Financial Affairs LPAs, which cover financial decisions, including those relating to bank accounts, pensions, benefits, bills and buying and selling property
- Health and Welfare LPAs, which cover decisions about medical and care needs, including moving into a care home and life sustaining treatment
LPAs are only valid in England and Wales, with the Scottish equivalent being a Power of Attorney. In Northern Ireland, two slightly different protocols are adopted, namely the Enduring Power of Attorney and Power of Attorney.
People make Powers of Attorney to enable trusted individuals to make decisions about their care or finances should they lose mental capacity. Loss of mental capacity can arise due to a variety of different reasons, for example a catastrophic brain injury or developing a disease that culminates in a loss of cognitive function, such as dementia.
Mental capacity is a legal term that centres around whether an individual is capable of making important decisions. A person is deemed to have lost mental capacity if they are unable to:
- Understand the information necessary to make a decision
- Retain that information
- Use that information as part of the decision-making process
Executing an LPA prior to losing mental capacity enables the attorneys to step in and manage the affairs of the donor on their behalf. An LPA also provides a conduit through which the donor can stipulate their preferences regarding their affairs and future care.
Health and social care professionals assess whether an individual has mental capacity by relying on the Mental Capacity Act principles. With a Health and Welfare LPA, attorneys can only make decisions on the donor’s behalf once the donor has lost the mental capacity to make decisions for themselves. With a Property and Financial Affairs LPA, on the other hand, attorneys can start making decisions on the donor’s behalf as soon as the LPA has been registered with the donor’s agreement, even if the donor still has mental capacity.
Putting an LPA in place provides peace of mind, reassuring the donor that someone they trust will take charge of their affairs. A donor may appoint just one attorney or several. Where more than one attorney is appointed, they may be appointed on a ‘joint’ basis, requiring them to make decisions together, or ‘jointly or severally’, bestowing upon them the power to make some decisions together and some individually.
Attorneys have a legal obligation to respect the donor’s wishes as far as possible, making decisions with the donor’s best interests first and foremost. If an individual loses mental capacity without making an LPA, it will be more difficult for their loved ones to step in and make decisions on their behalf. A family member may need to apply to the Court of Protection to be appointed as their deputy, a process that can be long, complex and expensive. Even if an individual is married or in a civil partnership it is still sensible to make an LPA, as their partner is not automatically entitled to make decisions on their behalf.
