Preparations for a loss of mental capacity

A Lasting Power of Attorney (LPA) is usually put in place by people who are conscious that they may at some stage in their life not be able to manage their own financial affairs possibly due to a slowing down or even loss of mental ability or physical capabilities.

LPA’s may also be used by a person who lives abroad most of the time and requires someone in the UK to deal with their property and related matters.

Lasting Powers of Attorney (LPA) have replaced Enduring Powers of Attorney (EPA) (although EPA’s made before October 2007 remain valid). They are designed to protect the donor. For example, every LPA has to be completed in front of a “Certificate Provider” who will certify that in their opinion, the donor is not acting under undue influence from another person, and has mental capacity. The Certificate provider will be a Solicitor, Medical Practitioner etc.

There are two types of LPA. Firstly, an LPA for property and affairs means that the donor gives full power to the attorney(s) to handle all matters relating to their property and financial matters. Secondly, an LPA for personal welfare gives a third party power to make decisions as to the donor’s welfare, so this will ensure that an elderly or sick person’s wishes as regards treatment can be given weight, but that power can only be used if the donor has lost mental capacity to make decisions on their own behalf.

An LPA cannot be used until it is registered with the Office of the Public Guardian, with them having a monitoring role thereafter so giving the donor more protection against potential financial abuse than was the case with the old EPA.

Pat Young – Wills and Inheritance Department
pat.young@smithpartnership.co.uk