Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document which allows a person, known as the 'donor', to appoint one or more people, known as the 'attorney/s', to help them make decisions or to make decisions on their behalf. There are two types of LPA:

• Health and welfare - this can give the attorney the power to make decisions about things such as the daily routine (for example, washing, dressing and eating), medical care, moving into a care home and life-sustaining treatment. This type of LPA can only be used when the donor or is unable to make their own decisions.

• Property and financial affairs - this can give the attorney power to make decisions about money and property for example: managing bank accounts, paying bills, collecting benefits/pension or selling the home. This type of LPA can be used as soon as it is registered with the Office of the Public Guardian, with the permission of the donor.

A donor can choose to make one type or both.

The two key requirements when making an LPA is that the donor is over 18 and has mental capacity (that is, the ability to make their own decisions) when the document is made. The validity of an LPA which was made in 2009 was recently considered by the court in which the judge had to decide whether the donor had sufficient mental capacity at the time the document was signed.

In the case, the donor (now aged 60) has a learning disability and schizophrenia.  He now lives in a care home but in 2009 he lived with his mother and his brothers.  At the time, he was able to go to the shops unattended, loved music and cooked occasionally. He signed an LPA in 2009 which was prepared by a firm of solicitors. A legal executive at the firm of solicitors countersigned the document in the capacity of certificate provider, which is an independent person who confirms that the donor understands the purpose of the LPA and is not under any undue influence. The legal executive added the following note to the document: 'Executive in legal firm – long term experience in creating EPAs and LPAs and ability to assess donor's capacity to understand what an LPA is – its importance – and the effect of the powers that are being given'.

There was no suggestion of improper conduct by the donor's family but the court reached the conclusion that the donor did not have sufficient capacity to sign the LPA in 2009. One of the key reasons was that the certificate provider had not mentioned the donor's disability and there was no evidence that they had experience of dealing with donors with a disability.

The case is an important reminder that anyone wishing to enter into an LPA should instruct a specialist solicitor who, crucially, has experience of dealing with any disability that the donor may have. Ensuring that evidence of this experience is noted in writing and, if necessary, on the document itself is important for the donor or and the attorney/s. Making an LPA is an important decision for everyone involved. One of the most effective ways to protect against fraud, undue influence and abuse is to take specialist legal advice to create an LPA.

To discuss this or any other private client matter, contact us.