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A Lasting Power of Attorney (LPA) is a legal document that allows you to formally appoint a close friend or relative as an ‘attorney’ so that they can make decisions on your behalf.

You can give them the power now to be able to make decisions in the future, if a time should arise when you may not want to make such decisions or you don’t have the mental capacity to do so.

You can draw up a LPA at any time, but it can only be used once it has been registered with the Office of the Public Guardian. Anyone over the age of 18, who has capacity to create one, can make a power of attorney, but you cannot make it jointly with another person.

LPAs come in two forms: a Lasting Power of Attorney Property and Financial Affairs (‘LPA PFA’) and a Lasting Power of Attorney Health and Welfare (‘LPA HW’).

Lasting Power of Attorney Property and Financial Affairs (LPA HW)

A LPA PFA lets you (as the ‘Donor’) authorise one or more people to make decisions on your behalf about how your property and affairs are managed and how your money is spent.

It can be used if you lack capacity, but it can also take affect whilst you still have capacity. For example, you may find it easier to give someone the power to pay your bills if you’re abroad for long periods of time, or you may want someone to collect your benefits for you if you can’t get out of the house easily. However, the LPA can be restricted so it only applies when you lack capacity.

You can decide to give your Attorney(s) the power to make decisions about any or all of your property and affairs.

They could have powers of attorney to sell your home or buy property for you in your name. They could make decisions about how your care (including healthcare) should be paid for or they could decide to carry on (or wind up) your business.

But they cannot make decisions about your personal welfare. These decisions must be made under a LPA PFA or, if this isn’t possible, by the Court of Protection or someone appointed by the Court.

Lasting Power of Attorney Health and Welfare (LPA HW)

A LPA HW allows you to authorise one or more people to make decisions on your behalf regarding your healthcare and personal welfare, but the Attorney(s) only have the authority to make those decisions once you’re incapable of doing so; for example, if you’re unconscious or because you’re starting to suffer from a condition such as dementia.

Decisions about your personal welfare are wide-ranging and can include decisions about where you live, how you’re cared for and what healthcare you receive. This can include specific decisions about medical treatments or more general decisions about whether you continue to live in your own home, perhaps with help and support from social services, or whether residential care would be more appropriate for you.

The decision to send you to a nursing home and the payment of that home cannot be made using a LPA HW alone. The Attorney(s) must have the power from a LPA PFA for the payment, and a LPA HW for the decision to put you in the home.

If you want your Attorney(s) to be able to make decisions about ‘life-sustaining treatment’, then you have to expressly give them the power to make these kind of decisions by completing section 5 of the LPA HW form.

You can make a legal document called an Living Will, in which you can specify in advance in what circumstances you don’t wish to receive specified treatments.

This form differs from a LPA HW in that it refuses treatment, whereas the LPA HW gives the Attorney the power to consent to or refuse treatments.

A LPA HW doesn’t apply to any decisions of a financial nature, which must be made under a LPA PFA or, if this isn’t possible, by the Court of Protection or someone appointed by the Court.

Stop worrying and make a Power of Attorney today.

Related Articles:

• What does a power of attorney do?
• How to choose Attorneys
• How to register a LPA

 

Published on: October 25, 2010

All of us know that we need to write a Will to make sure that our loved ones are financially secure in the event of our death. But what happens if you get ill and you can’t look after yourself or you become mentally incapable? Would your affairs be left in limbo if you had an accident or got sick?

A power of attorney can help. It allows you to nominate a trusted friend or relative, or more than one if you so wish, to act on your behalf. The person you appoint, called an ‘Attorney’, can then use your money to pay bills, sell assets on your behalf and make gifts.

But what types are available and how do you create one? Here’s our guide to what you need to know.

Q What kinds of powers of attorney are there?

A There are three types in England and Wales:

1. A Lasting Power of Attorney Property and Financial Affairs (LP1F)

   This form allows you to choose someone to make decisions about how your property and financial affairs are managed, and how to spend your money. An LPA PFA can be used when you lack capacity with regard to a certain decision. It can also be used when you don’t lack capacity, although it may be restricted so as to apply only where you lack capacity. It has no legal standing until it’s registered with the Office of the Public Guardian.

2. A Lasting Power of Attorney for Health and Welfare (LP1H)

   This form allows you to choose someone to make decisions about your welfare and healthcare. It allows someone to make decisions about where you live, how you are cared for and what healthcare you receive; this can include specific decisions about treatments or more general decisions. These decisions can only be taken on your behalf when the LPA has been registered with the Office of the Public Guardian and you lack the capacity to make the decisions yourself.

3. A General Power of Attorney (GPA)

   A GPA is used when you want someone to act on your behalf for only a set period of time (e.g. if you are going abroad) or for specific events, when your age and health make it unlikely that you could lose capacity during the duration of the GPA. It applies only to your property and affairs and it cannot be used to authorise someone to make decisions concerning your personal welfare. Unlike the LPA, it ceases to take effect if you become mentally incapable and it doesn’t have to be registered.

There are also three types in Scotland:

1. A Continuing Power of Attorney (CPA)

   This Scottish form allows you to appoint someone to take long-term control of your interests, particularly if you’re elderly or in poor health. A CPA can be used by an Attorney both before and after you become mentally incapable but it must be registered with the Office of the Public Guardian while you’re still mentally capable.

2. A Welfare Power of Attorney (WPA)

   This Scottish form allows you to appoint someone to make decisions about your welfare when you’re incapable of doing so yourself. For the WPA to be valid, it must be registered with the Office of the Public Guardian while you’re still mentally capable.

3. A General Power of Attorney (GPA)

   A Scottish GPA is the same as the English version, mentioned above.

Q How many people should I appoint and who?

A You can have one or more than one Attorney. You can also appoint a person to act as a replacement in case your chosen Attorneys cease to be Attorneys (for example, because they die, become bankrupt, or lose capacity to exercise the power).

If you did happen to become mentally incapable, you obviously would not be able to check up on the person you appointed, so it may be wise to appoint more than one person to help prevent abuse of the responsibility. Make sure that you choose people you will act in your best interests. It also may be to your advantage to choose someone who looks after their own financial affairs carefully and who you can trust to use your money wisely.

If you have more than one Attorney, you can require the Attorneys to act ‘jointly’, or ‘jointly and severally’, or jointly for some matters and jointly and severally for others. If you appoint your Attorneys to act jointly, it means that they must all make any decisions together.

If you appoint your Attorneys to act jointly and severally, this means that they can make their decisions together but may also make their decisions separate from one another and need not consult each other about those decisions.

If you appoint your Attorneys to act jointly in respect of some matters and jointly and severally for others, then for those matters that you said they must act jointly they must agree but for the others they can act together or separately.

Q How do I register a LPA?

A Once a LPA has been created, you (or one or more of your attorneys) must register it with the Office of the Public Guardian (OPG) before it can be used. They will then stamp each page of the form to show that it has been registered. It’s not necessary to register an LPA immediately after it is created but it cannot be used in any way before it is (even in the case of a LPA PFA that is intended to be used when you have capacity).

Prior to registration, it’s necessary to notify all those people who are specified within the LPA as people to receive notice of its registration. This notification must be given by the person(s) applying to register the LPA.

Find out more about registering a LPA.

In Scotland, a CPA can be used immediately after it has been signed by you and registered with the Office of the Public Guardian. A WPA can be used only after you’re incapable of acting for yourself and after it has been registered.

Q How do I cancel it?

A You can cancel a LPA at any time, but you need to get a solicitor to draft a Deed of Revocation for you. It will be automatically cancelled if:

1. the attorney dies;
2. the attorney refuses to act;
3. your spouse is your attorney and you get divorced;
4. the attorney ceases to have capacity to exercise the power;
5. if you, or your attorney, become bankrupt (only relevant to a LPA Property and Financial Affairs).

But in all these circumstances (apart from you becoming bankrupt), there must be no other Attorneys or a replacement Attorney available to act for the LPA to be cancelled.

For Scottish powers, a CPA or WPA can be revoked at any time after they have been registered, as long as you’re still mentally capable. You will need to get a solicitor to draft a Deed of Revocation. Both these forms will also be cancelled if you have appointed your spouse as your attorney and you get divorced.

A GPA is automatically annulled if you become mentally incapable. Otherwise, it remains valid until it’s revoked. The GPA can be revoked orally, but it’s best to write ‘cancelled’ on the original form or simply tear it up. A GPA would also be revoked by the death or bankruptcy of you or the attorney.

Stop worrying and make a Power of Attorney today.

Related Articles:

• The powers you can give with a LPA
• How to choose Attorneys

by Sarah Ashcroft

As you get older, there are plenty of things to worry about and one of the primary concerns will always be your health.

You never know when you might suffer from a serious illness that affects your body or mind, so it’s important to be prepared. One of the best ways you can do this is by completing a lasting power of attorney (LPA) as you approach your twilight years.

What is a LPA?

A LPA is a legal document that gives you the chance to appoint certain people – usually family members, or perhaps close friends – to make decisions on your behalf in the event that you’re unable to do so.

In most cases, there are two types of lasting power of attorney that you can make:

1. Lasting Power of Attorney Health and Welfare 

The first relates to health and welfare, and is known as a LPA HW.

With this document the individuals you appoint can made decisions on your behalf, such as whether you should be administered certain medicines or taken into a care home.

2. Lasting Power of Attorney Property and Financial Affairs

The second is a property and financial affairs lasting power of attorney, known as a LPA PFA.

This document gives others the right to decide what to do with your financial matters and assets. This includes their day-to-day running and any possible decisions over whether to sell or improve them.

A LPA PFA also gives someone the right to pay your bills and collect your benefits, which are crucial tasks if you’re to avoid money problems.

Can I make both types?

You can opt to make one type of LPA or both, depending on your circumstances and what matters you would like to be dealt with by others should you lose your health or ability to make rational decisions.

Who can make a LPA?

Anyone can make a LPA, providing you’re over the age of 18 and of sound mental capacity. There is no point in taking a risk, so making at least one appointment long before you reach old age is a wise move.

Where do I start?

Looking forward, you now need to know the steps you need to take to make a LPA:

1. Select an attorney

The first step must always be to choose your attorney, bearing in mind that you can have more than one.

Think carefully about who you would want to be in control of your financial matters and welfare in the event of you losing the ability to make these decisions.

2. Complete the LPA forms

The next step is to fill out all the relevant forms with details about yourself and your chosen attorney(s).

Lawpack’s Power of Attorney Kit includes expert advice to help you with this.

3. Registration

The LPA forms must then be registered with the Office of the Public Guardian. The registration will take up to eight weeks.

4. Contact your attorneys

It’s also worth noting that you will need to send a Notice of Intention to Register Form (included in Lawpack’s Power of Attorney Kit) to everyone you wish to include as an attorney, as these people will be given three weeks to raise any issues they may have with the process.

Once everything is completed, you will be in a position to breathe easy, safe in the knowledge that your best interests will always be acted upon, no matter how your health is.

More information

• Why you need a power of attorney
• The different types of power of attorney
• The powers you can give with a LPA
• How to choose an attorney

External information:

• Wikipedia
• Directgov: What is a LPA?
• Alzheimer’s Society: EPAs and LPAs

 

Published on: April 13, 2014

Considering death and the possibility of serious ill-health isn’t something that anybody wants to do, but it undoubtedly makes sense to spend a little time thinking through the implications of either.

While a Will is the obvious answer to any concerns you might have over what happens to your assets and wealth when you pass away, you might find matters a little more complex regarding the possibility of illness. The good news is that there is a very straightforward solution – a lasting power of attorney (LPA).

What is a LPA?

It’s a legal document you sign when you’re fighting fit and details exactly how you would like to be looked after should you fall ill. The sad facts are that a sizeable portion of the population will be diagnosed with varying degrees of dementia as they hit old age, meaning that they could be left unable to deal with their affairs.

If you don’t want this to be you, create and sign a LPA as soon as possible.

When does it take effect?

The agreement becomes active as soon as you’re deemed to be lacking sufficient mental capacity to make your own decisions. This can be the result of a condition such as dementia or an injury sustained in an accident, so you never know when it will be needed.

How do I make one?

1. Choose an Attorney

The best way to create a LPA is to first choose somebody you trust and can be sure has your best interests at heart. This might be your spouse, parent or child. You can then make this individual your attorney in the event of any unfortunate scenario.

2. Choose your LPA

Your other key decision is over which type of power of attorney to choose. There are two options:

A Property and Financial Affairs LPA

A LPA PFA allows your chosen representative to deal with all your financial affairs. This means that they can pay bills on your behalf and choose what to do with any property you might own.

A Personal Welfare LPA

This relates to more personal matters, such as giving somebody the power to decide what medication you’re given. Indeed, any type of help you might need at any point in your life, your chosen attorney will be able to adjudicate if given the right to do so.

There is no obligation to finalise both types of LPA. If you have many assets you might find the former option is the best for you, while if you’re already concerned about medical or residential issues you may face in the years to come, the latter could be just what you’re looking for.

It goes without saying that such scenarios are not what you want on your mind, but it’s also hugely important that you can rest easy knowing that you will be cared for should you suffer illness or injury in the future.

As such, a lasting power of attorney could be considered a must for many Britons.

Related articles

• What does a power of attorney do?
• The powers you can give with an LPA
• How to register an LPA

There are a number of reasons to draw up a living will, which has been reclassified as an Advance Decision in England and Wales.

It enables you to communicate your medical wishes should you become too ill to voice them yourself.

An Advance Decision also entitles you to refuse organ donations – a choice that might be based on your own personal or religious beliefs.

Perhaps the best illustration of why a living will is important was in the recent case of a motor neurone disease sufferer simply called XB.

The 67-year-old had become so incapacitated by the illness that he was unable to tell doctors he wanted to refuse treatment.

Controversy arose when the man drew up an Advance Decision in the presence of witnesses, only to have it later challenged by an NHS trust, which expressed concern over its clarity.

XB said in the living will that he did not want to be treated anymore for his condition and made this declaration literally in the blink of an eye.

The Court of Protection ruled the man’s wishes as valid but after hearing the evidence, Mrs Justice Theis emphasised the importance of clarity in drawing up an Advance Decision.

The judge also drew attention to the fact that health organisations should investigate potential issues surrounding the conditions of an Advance Decision as a “matter of urgency”.

XB received the right to have his life support system switched off, yet this might not have been the case if his wife had not found an Advance Decision template on the internet.

In 2010, she discussed with XB “what life-sustaining treatment he would receive” and by the following year, he had decided to withdraw such treatment.

Partner at Irwin Mitchell, Yogi Amin, who represented the family, was quoted by the Daily Telegraph as saying: “The law allows a person to prepare an advance healthcare decision to refuse life-sustaining treatment at a future date.

“This case illustrates the importance of preparing the advance decision document properly and carefully.”

Those wishing to download an Advance Decision template might consider Lawpack’s living will form. The form has been solicitor-approved, so you can rest assured that it is up to date and within the parameters of the law.

It is worth noting that an Advance Decision is not always legally binding and that only refusals of medical treatments or procedures will be binding on medical staff.

A living will template cannot be used to specify the kinds of treatment you would like to undertake, but the Advance Decision enables you to make requests regarding your treatment.

A living will also allows you to appoint someone to discuss your care with the doctors involved in your treatment, ensuring your requirements meet your expectations as far as the law allows.

The benefits of drawing up an Advance Decision should not be undermined as they enable people in vegetative states to terminate their life-support machine if they have previously expressed this condition in the living will.

Ideally, the form will be drawn up when you are in good health and acts as protection in the event that your health deteriorates through a serious condition.

More information

• What is a living will?
• How to make an advance decision
• The benefits of making one

External information

• Wikipedia
• Age UK
• BBC

When an advance decision form is completed, it is a legally-binding agreement in England and Wales that states what treatment you do or do not want should you become too incapacitated to make the decision due to physical or mental illness.

It is only binding if it is proven to have been made at a time when you were fit enough to make the decision and without interference from other people.

The form is also known as a living will in Scotland and is in contrast to an advance statement which is not legally binding.

An advance statement is merely a statement of your personal beliefs and values which health professionals can take into consideration when determining the best treatment for you in illness.

What an advance decision covers?

Other provisions that make an advance decision valid include:

• Being over 18
• Clearly identifiable requests in terms of treatment
• An explanation of specific circumstances under which you would refuse treatment
• Ensuring you do not say or do anything that could contradict your treatment requests

However, there are also a number of instances that an advance decision cannot cover which include:

• Asking for assistance to commit suicide (euthanasia)
• Any requests which are contrary to the law
• Selecting someone to make treatment requests on your behalf

If you want someone to make decisions about your treatment on your behalf, then you must make a lasting power of attorney instead and this must be registered with the Office of the Public Guardian.

It is also worth noting that advance decisions to refuse treatment are covered by the Mental Health Act 2005, and as such, a doctor who administers treatment against your will under this provision is breaking the law.

How to refuse life-saving treatment

In order to refuse life-saving treatment, it is necessary to fulfil the following criteria:

• Make a written statement – Lawpack’s solciitor-approved advance decision form can help
• Ensure you sign and date the form
• Make it clear you wish to refuse treatment even though you know it could save your life

When an advance decision may be overruled

In certain instances, a doctor might overrule an advance decision but this is only lawful under such conditions as the following:

• You have contradicted your requests, perhaps through an official change in values such as switching religion
• Unforeseen circumstances, such as the development of a new treatment, which could have affected your decision
• Your written requests were too vague for doctors to determine your wishes in such a situation

Other instances that a decision cannot be used for include:

• Refusal of treatment at a time when you are mentally or physically able to make that decision
• Refusal of the administration of food and water through the mouth
• To refuse practices in place solely to aid your comfort, such as the use of painkillers
• To refuse basic nursing services, such as washing and mouth care
• To request treatment that a healthcare professional deems inappropriate
• Refusal of treatment for mental disorders at a point when you are subject to detainment under the Mental Health Act 1983

Advance decisions cannot be used to make requests about conditions not related to medical issues, such as financial matters.

The most comprehensive of advance decisions are well-written and detailed. To make one easily, please see Lawpack’s solciitor-approved advance decision form.

External information:

• Wikipedia
• NHS

 

Published on: September 20, 2011

You can use a Living Will to communicate, in advance, your wishes to refuse any medical treatment you may receive in the future, in case it’s not possible for you to express your preferences at the time.

It can be used in England & Wales and Scotland. But in England & Wales it’s also known as an ‘Advance Decision’.

A Living Will form can be used to refuse treatment you object to on religious grounds or for any other reason, and it can be used to refuse treatment that is necessary to save your life (‘life-sustaining treatment’).

It applies only to your health care and it cannot be used to make other decisions, such as those relating to your financial matters (including how any care should be paid for).

When a Living Will applies

To make one, you must be over 18 years of age.

It only applies when you’re no longer able to make decisions regarding medical treatment for yourself.

The Living Will form applies only to the treatment specified within it and only in the circumstances specified. It’s important that you’re very clear as to precisely what treatment you’re specifying in the form and in what circumstances you intend to refuse it.

Although you can use layperson’s language, in some cases it will be worth consulting your doctor for the precise definition of the treatment you wish to refuse.

It won’t apply if there are reasonable grounds for believing that there are circumstances which you didn’t anticipate at the time you made the form, and which would have affected your decision had you anticipated them.

It can be used only to refuse treatment. Although it will be treated as evidence of your wishes, it cannot be used to insist on a specific form of treatment being carried out.

It cannot permit any form of euthanasia or assisted suicide. If you have made one to refuse a specific treatment and it applies to the particular circumstances, your health care givers must honour it, even if they think that it’s in your best interests for you to have the treatment.

If it’s decided, for whatever reason, that your form doesn’t apply, it may still be treated as an expression of your wishes and desires and to assess whether the treatment is in your best interests.

Communicating your Living Will

A Living Will form can apply only where the person providing your health care is aware of it. You should think carefully about where you keep it and how it will be communicated to the relevant professional.

It may be necessary to have the form’s existence recorded on your health care notes and a copy kept with those notes. If it’s relevant, you may wish to carry a bracelet or card that draws attention to the existence of it. You should also consider making your family or friends aware of the existence of the form.

Updating your Living Will

It’s recommended that you regularly review any form you have made and update it as appropriate. If you update your form regularly, it’s more likely to be viewed as being applicable, if and when it’s needed. If you wish to revoke or withdraw it, it’s best that you do so in writing.

Stop worrying and make a Living Will today. 

Other information:

• The benefits of making a Living Will

 

External information:

• Wikipedia
• BBC

 

Published on: October 25, 2010

With a Living Will you can outline your personal wishes regarding medical treatment should a situation arise in the future where you get seriously ill and you’re not able to express your wishes.

You can use Living Will forms in England & Wales, and Scotland. But in England & Wales it is also known as an Advance Decision.

When you may need a Living Will

Many people are concerned about what will happen to them if they become very ill and are unable to communicate their wishes to anyone. Many fear the loss of dignity and the significantly decreased quality of life which can result from degenerative health conditions.

Medical technology has now advanced to such a degree that people can be kept alive even when they are brain dead. Some people, after careful consideration and discussion with their doctors, decide that they don’t want to receive treatments which would result in a meaningless and prolonged artificial existence.

They want to have the benefit of recording their decisions and the peace of mind of knowing that this will be communicated to the doctors. Opinions on how long a life can and should be prolonged have become increasingly subjective and it’s increasingly acknowledged that people should be allowed to have a say in their future medical care.

If you go into a hospital or a nursing home without specific written instructions, or appropriate notes of conversations with doctors having been made on your medical notes, the institution you enter will be legally bound to keep you alive by whatever means are deemed necessary and appropriate by the medical staff.

You can express your rational views on the circumstances in which you wouldn’t want such attempts to keep you alive to continue. A Living Will form, which has been made when a patient is in good health, is advantageous later on and it’s good evidence of your true feelings.

When a Living Will applies

Doctors are sometimes reluctant to honour the refusals by seriously ill patients because they cannot be certain that the decision is rationally made. With a Living Will form, they can respect your wishes, but do note that only refusals of medical treatments or procedures outlined in the form are binding on medical staff.

Requests for special treatments (other than pain management and basic nursing) may have persuasive force, but doctors don’t have to follow instructions outlined in the form.

Communication with your family

A Living Will form can let your family know what you want. Many families don’t want to accept that their loved one isn’t going to recover and they, therefore, feel that they have to try any procedure which is available.

You can also use it to appoint someone whom doctors may consult on health care matters for you; this person is referred to as a Health Care Proxy.

It’s advisable that you discuss the options in the form with your doctor and family before completing it.

Remember that you can change your mind at any time about a prior written directive in the form and you can consent to treatment which you had previously decided to refuse.

Stop worrying and make a Living Will today.

Other information:

• What is a Living Will?

External information:

• Wikipedia