Lasting Powers of Attorney & Court of Protection

A Lasting Power of Attorney is a legal document that allows you to appoint someone you trust to make decisions about your health, welfare, property and finances on your behalf, especially if you become unable to make decisions for yourself due to mental incapacity.

If you don’t make a Lasting Power of Attorney and you lose mental capacity, your loved ones must apply to the Court of Protection for a Deputyship Order. This can be time consuming and costly because nobody automatically has the power to manage your affairs — not even your spouse.

Any person who’s 18 years or older and has mental capacity can create a Lasting Power of Attorney.

For a property and finance Lasting Power of Attorney, an attorney can pay the donor’s bills, sell or deal with their property or investments and operate their bank account. The attorney can use the LPA while the donor still has capacity unless the donor specifies otherwise in the LPA — although, in this circumstance, the donor still makes all the decisions. Once the donor has lost capacity, the attorney can make decisions for the donor. All decisions must be made in the donor’s best interests.

For a health and welfare Lasting Power of Attorney, an attorney can make decisions about the donor’s diet, where they live, how the donor spends their time and medical treatment (unless the donor specifies otherwise in the LPA). If granted the authority, they can also make decisions about life-sustaining treatment. A health and welfare LPA can only be used where the donor has lost capacity. All decisions must be made in the donor’s best interests.

You can limit the power that you give to your attorney by providing specific instructions in your Lasting Power of Attorney. This may include how you’d like decisions to be made. For a health and welfare attorney, the LPA can’t be used until the donor loses mental capacity. Similarly, the donor can specify whether they want their property and finance LPA restricted until they lose their capacity or that their attorney can act without restriction while they still have capacity. 

You can appoint anyone as your attorney so long as they’re over the age of 18 and have mental capacity. 

Many couples appoint their partner or spouse as their attorney and if you have children, you could appoint them too — either as your main or replacement attorneys. 

If your affairs are particularly complex (especially when it comes to your finances), you might wish to appoint a professional attorney such as a solicitor. This can be done either in combination with your family members or friends if you wish. 

It would be fairly unusual for you to appoint a professional attorney for a health and welfare LPA.

If you have any concerns about someone failing to act in your best interests or lacking the right attitude or skills to take on what can be an onerous role, you should probably not appoint that person.

In the UK, there are two main types of Lasting Power of Attorney — one for health and welfare decisions and another for property and financial affairs. 

You can choose to either create one or both types of LPA, depending on your needs.

Enduring Powers of Attorney are legal documents that allow you to appoint someone you trust to make decisions on your behalf for matters concerning property and finance only.

EPAs that were made and signed before 1 October 2007 can still be used today.

Mental capacity concerns your ability to make a decision — whether that affects your daily life or more significant decisions such as whether to undergo a surgical procedure, buy a house or make an investment. 

The Mental Capacity Act states that an individual is unable to make a decision if they can’t understand the relevant information, retain information and use or weigh-up that information as part of the decision-making process. 

If mental capacity is uncertain, it may be necessary to seek professional medical advice in relation to a capacity assessment. Just because someone makes an unwise decision, it doesn’t mean that they lack mental capacity.

Life sustaining treatment is any treatment that a doctor deems necessary to keep the donor alive. This could be anything from an operation to giving a course of antibiotics. A donor must decide whether or not to give their attorneys the authority to give or refuse consent to life-sustaining treatment on their behalf. It should be noted that the power to consent to or refuse treatment is the same as the donor would have had themselves with the capacity to make decisions. It isn’t a power to force treatment to be given.

Anyone (including health and welfare attorneys) who assists with suicide or attempted suicide could potentially be charged under the Suicide Act 1961. 

A Lasting Power of Attorney that includes instructions to attorneys to carry out unlawful acts such as assisting in suicide (whether within or outside of the UK) would be severed by the Office of the Public Guardian when the LPA is registered. 

An Advance Decision (sometimes known as a ‘Living Will’) is a legal document that enables an individual to express the terms on which they refuse medical or surgical treatment if they lack the mental capacity to make that decision themselves or are unable to communicate that decision (for example, if they’re unconscious). Most often, the individual will consent to receiving hydration, being fed and receiving pain-relieving treatment.

This is a complex area of law. A Lasting Power of Attorney for property and finance allows an attorney to exercise rights and make decisions in relation to an individual’s property. An attorney should be able to deal with the donor’s sole trader business but whether they can deal with the donor’s interest in a partnership may depend on the terms of the partnership. 

While an attorney can exercise the voting rights of a shareholder, they generally can’t exercise the functions of a director. There are circumstances where an attorney could exercise director functions, though these are prescribed through the Companies Act — not via an LPA. It’s essential to take expert legal advice on this area, particularly for sole shareholder or sole director businesses. 

It’s possible to have more than one LPA in existence at the same time. As such, a donor can create an LPA that appoints different attorneys to deal with their business interests than those they appoint to deal with their personal affairs.