If you have been asked to act as an Attorney under a Lasting Power of Attorney (LPA) it is important to understand what an LPA is, the different types of LPA and whether you are able to be an Attorney. The following sections explain:
What is an LPA?
An LPA is a legal document that somone (the Donor) makes using a special form. It allows that person to choose someone now (the Attorney) that they trust to make decisions on their behalf at a time in the future when they either lack the mental capacity or no longer wish to make those decisions those decisions themselves.
The decisions could be about the Donors property and affairs or about their personal welfare.
Making an LPA is the only way to make plans for a time in the future when you may lack the capacity to make decisions for yourself.An LPA can only be used after it is registered with the OPG.
There are two types of LPA:
The Property and Affairs LPA
A Property and Affairs LPA allows the Donor to appoint an Attorney to manage their finances and property whilst they still have capacity to make decisions for themselves.
For example, it may be easier for them to give someone the power to carry out tasks such as paying their bills or collecting their benefits or other income.
This might be easier for lots of reasons: the Donor might find it difficult to get about or to talk on the telephone, or might be out of the country for long periods of time.
Alternatively, the Donor may include a restriction that the LPA can only be used at a time in the future when they lack the capacity to make decisions for themselves – for example, due to the onset of dementia in later life or as a result of a brain injury.
An Attorney will not be able to make decisions about a Donor's personal welfare unless they have also been appointed as a Personal Welfare Attorney using a separate LPA.
The Personal Welfare LPA
A Personal Welfare LPA allows the Donor to appoint an an Attorney to make decisions on their behalf about their personal welfare.
A Personal Welfare LPA can only be used when the Donor lacks the capacity to make these decisions for themselves.
An Attorney will not be able to make decisions about a Donor's property and affairs unless they have also been appointed as a Property and Affairs Attorney using a separate LPA.
An LPA is different to a Power of Attorney and an Enduring Power of Attorney (EPA). Information on EPA's can be obtained from the OPG on 0845 330 2900 or downloaded from the forms and booklets section of our website.
Restrictions and/or conditions
An LPA may contain restrictions and/or conditions that place limits on the decisions you can take, for example you may only be allowed to make decisions about where the Donor lives or you may not be able to sell the Donors house. You must adhere to these restrictions and conditions.
The Donor may also talk to you about their wishes and feelings and may also include guidance in their LPA to assist you when making decisions in their best interests. You should take account of this guidance when making decisions for them.
Who can make an LPA?
Anyone aged 18 or over, with the capacity to do so, can make an LPA. You cannot make an LPA jointly with another person; each person must make his or her own LPA.
Who can be an Attorney?
This depends on the type of LPA that the donor is making, if the donor is making:
- A Personal Welfare LPA then anybody over the age of 18 can be an Attorney as long as their details are correctly written on the LPA form;
- A Property and Affiars LPA then anybody over the age of 18 can be an attorney. However, you must not be bankrupt when you sign the LPA form. You should also note that if you become bankrupt in the future, this could result in the LPA being cancelled if it has been registered with the OPG.
If you are unsure whether you can be an Attorney under an LPA please contact the Customer Services team on 0845 330 2900.
What it means if you have been asked to act with another attorney
The Donor may wish to appoint you to act with one or more other Attorneys and can appoint you to act in different ways. You can be appointed to act:
- Together.
This means that all attorneys appointed in the LPA must agree on a decision or all attorneys must sign a relevant document. For example, all attorneys appointed together would have to agree where the donor was to live.
Appointing attorneys to act together is sometimes used as a safeguard by the donor. However, appointing lots of attorneys can mean:- it is difficult for them to act/make decisions; or
- the LPA could be cancelled if attorneys appointed together cannot work together or one of them dies or loses the capacity to act.
- Together and independently.
This means that each attorney appointed can act on their own when making decisions on behalf of the donor and that the attorneys can also act together. This means that any one of attorneys appointed together and independently can decide on a particular issue.
Even if you are appointed with other attorneys to act together and independently it is important to discuss any decisions you are making with the other attorneys, where relevant, before you make them, to avoid any conflicts whilst the LPA is being operated. - Together in respect of some matters and together and independently in respect of other matters.
This means that all attorneys are required to agree on certain specified decisions but can act on their own when making other decisions. For example, the donor may state that all attorneys must agree on any decision relating to medical treatment, but can act on their own in deciding in which nursing home they live.
The donor will need to clearly set out what these matters are in their LPA.
Please note: It is very important to remember that if the donor decides to appoint more than one attorney but does not specify in the LPA how they have appointed them, they will automatically be appointed together.
In an LPA 'together' means jointly and 'together and independently' means jointly and severally for the purposes of the Mental Capacity Act 2005.