Goes through the regulations and guidance for creating a lasting power of attorney. It provides case law and statutes surrounding registration, uses and rules surrounding who can become a lasting power of attorney.
- The client must think about what might happen to them if they were to lose capacity at a
future stage of their life.
- Who do they want to manage their affairs?
- A client can declare who they would like to manage their affairs in advance of such an
occurrence.
Enduring power of attorney
- Relates to other jurisdictions.
- Older system here. These were replaced by Lasting Powers of Attorney in 2007
- There are some differences to be discussed.
Who would benefit from an LPA?
- Older clients
- Clients with health concerns
- It is important for everyone to consider what might happen if loss of capacity was to occur.
- This would mean that your client has full control over what happens to them in the future.
Court of Protection
- If there is no LPA, then it falls to the Court of Protection to appoint a deputy to decide on
the financial and health matters of the individual who has lost capacity.
o This can make things more difficult as the court doesn’t like appointing a welfare
deputy to make health decisions Re Lawson, Mottram and Hopton [2019]
- Whether appointed by the Court of Protection or an Attorney under an LPA the duty is to act
in the best interests of the person lacking capacity.
o S.8 of the LPA – Your attorneys must always act in your best interests. This is
explained in the application guide, part A8 and defined in the MCA (Mental Capacity
Act) Code of Practice.
Regulation
- Sources that create the regulatory structure around LPAs
o The LPAs themselves
Made for lay people.
o MCA 2005
o MCA code of practice
o Lasting Powers of Attorney Regulations 2007
- S.9 MCA 2005
o An LPA is a power of attorney under which the donor confers on the donee (the
attorneys) the authority to make decisions about all or any of the following where
the donor no longer has capacity:
Donor’s personal welfare (health and care)
Donor’s property and welfare (financial affairs)
Donor can choose one or opt for both.
Separate forms to fill out.
, Who can be an attorney?
- S.2 LPA form:
- Must be over 18.
- A donor can appoint more than one.
- An attorney ceases to be able to act if they die, lose capacity or become bankrupt (in the
case of financial LPAs)
- Doesn’t need special legal knowledge or training.
- Should be people you trust and know well.
- If a client wants more than one attorney, they must think about:
o How they want those attorneys to make decisions
Jointly and severally?
On their own or together
Simple urgent decisions can be made on their own.
Jointly
Must agree on every decision together.
o This can cause issues in getting things done as they must
meet up for every small choice.
o Most common
If one of the attorneys dies/ loses capacity, then the LPA stops
working.
o This is unless you appoint at least one replacement
attorney.
o The law views the decision-making process as done by a
group.
Jointly for some decisions, jointly and severally for others
Some jointly. Some severally
Still need to appoint a replacement for those decisions you wanted
to be done jointly.
o If they want any replacements
If one of your original attorneys dies, loses capacity, no longer wants to be
your attorney or is no longer legally your spouse/ civil partner you would
need a replacement attorney for the LPA to continue.
These are backups in case one of the original attorneys can’t make decisions
for you anymore.
Replacement attorneys must be at least 18 years old and have the mental
capacity to make decisions.
How to create an LPA
- Only an adult can do this.
- The donor must complete the prescribed forms in full.
- Gov.uk has the various forms in a single location.
- The forms ensure that:
o Donor understands what they are conferring.
o Notification preferences are set out.
o Attorneys understand their rights and responsibilities.
o Certification is completed.
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