END OF LIFE LAW: LASTING POWERS OF ATTORNEY
A Lasting Power of Attorney (LPA) is a legally binding document in England and Wales, that allows you to appoint someone to make decisions on your behalf if you lose mental capacity in the future. An equivalent power also exists in Scotland. There are two main types of LPA. The first concerns your property and finances. The second concerns your health and welfare.
Having an LPA gives people you trust control over what happens to you, if an illness means that you are no longer able to make decisions for yourself. They can also make things easier for your friends and family in the future, as it is more difficult and expensive for them to get authority to act on your behalf – possibly by having to go to court – after you are no longer able to give it.
Although some people find they are able to make an LPA online without help from a solicitor, it is an important legal document, so you may want to seek advice from a legal adviser with experience. You can make one in paper form or online. For information about LPAs see this government website: https://www.gov.uk/power-of-attorney
HOW DO LASTING POWERS OF ATTORNEY WORK?
An LPA allows you to appoint a representative(s) who will make decisions for you after you lose mental capacity. For example, they can decide where you live when receiving medical care, your diet, and what you wear. It is also possible for an attorney to accept or refuse life-sustaining treatment on your behalf, but only if you specify that they have this power.
It’s vital that you appoint someone that you trust, but you are allowed to appoint more than one person and it could include e.g. your children.
Your appointed person(s) must act in your best interests, not take advantage of you for their own benefit, and consider your past and present wishes. If your appointed person(s) fails to do this, the Office of the Public Guardian can investigate and prosecute them.
WHAT MAKES A LASTING POWER OF ATTORNEY VALID?
A full breakdown of requirements for a legally valid LPA can be found under Sections 9-14 of the Mental Capacity Act 2005. But, broadly speaking, an LPA is valid if:
- It is made by someone who is at least 18 years old
- It is created at a time when someone has mental capacity
- It explicitly gives permission to accept or refuse life-saving treatment (provided you want someone to have that power)
- It is put down in writing, signed by yourself, independently witnessed, and signed by your appointed person(s)
- It is signed by a ‘certificate provider’ which can be someone known to you for 2 years, or someone like a doctor or lawyer
- It is registered with the Office of the Public Guardian.
It is important to know that there is a fee for registering an LPA with the Office of the Public Guardian. It is also advisable to alert others that you’ve made a Lasting Power of Attorney. To do this, you can choose to notify specific people about the existence of your LPA on your form.
WHAT HAPPENS IF I DON’T MAKE A LASTING POWER OF ATTORNEY?
If you do not make an LPA before you lose mental capacity, then someone may need to apply to the Court of Protection to become your ‘Deputy’. A Deputy has similar powers to someone appointed by an LPA, but the process of becoming a deputy is more costly, time-consuming and requires additional responsibilities, such as submitting an annual report and paying an annual fee.
WHAT IS THE RELATIONSHIP BETWEEN A LASTING POWER OF ATTORNEY AND ADVANCE DECISION?
There is also an important timing issue that needs to be borne in mind if making an Advance Decision and an LPA. If you make an Advance Decision followed by an LPA, your attorneys under the LPA could override the decisions in your Advance Decision. On the other hand, if you make an Advance Decision after your LPA, if you lose mental capacity your attorneys would not be able to consent to any treatment which you specifically stated should be refused in your Advance Decision.
