Legal Considerations for Care

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney is a legal document that lets you (the 'donor') appoint one or more people (known as 'attorneys') to make decisions on your behalf.

This gives your attorneys the authority to manage your affairs if you lose the mental capacity to do so yourself, for example, due to dementia, a stroke, or an accident.

The Two Types of LPA

You can choose to make one or both types of LPA. For comprehensive care planning, it is highly recommended to have both in place.

1. Health and Welfare LPA

This allows your attorney to make decisions about:

• Your daily routine (washing, dressing, eating).
• Medical care and treatment.
• Moving into a care home.
• Life-sustaining treatment (if you explicitly give this authority).

A Health and Welfare LPA can only be used when you are unable to make your own decisions.

2. Property and Financial Affairs LPA

This allows your attorney to make decisions about your money and property, such as:

• Paying bills and managing your bank accounts.
• Collecting your benefits and pension.
• Selling your home to pay for care fees.

This type of LPA can be used as soon as it's registered with the Office of the Public Guardian (OPG), with your permission. This can be useful if you become physically unable to manage your finances, even if you still have mental capacity.

Why an LPA is Essential for Care Planning

Without an LPA, if your loved one loses capacity, your family faces significant challenges:

• No Access to Finances: Banks will freeze accounts. You won't be able to pay bills or care home fees from their money.
• Inability to Sell Property: You cannot sell their home to fund their care.
• Decisions Made by Others: Social services and doctors may have to make decisions about care and treatment without knowing your loved one's wishes.

What happens if there is no LPA?

If a person loses mental capacity and does not have an LPA, someone (usually a family member) must apply to the Court of Protection to become their 'deputy'.

Setting up an LPA is a far simpler, cheaper, and more effective way to plan for the future.

How to Set Up an LPA

1. Choose Your Attorneys

Choose people you trust completely, such as a spouse, partner, children, or a close friend. You can appoint more than one. Consider appointing a replacement attorney in case your first choice is unable to act.

2. Complete the Forms

You can complete the forms online via the Gov.uk website or download paper forms. You will need a 'certificate provider' – someone impartial like a doctor, solicitor or friend who has known you for over two years – to sign the form to confirm you understand what you are doing.

3. Register the LPA

The LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. This currently costs £82 per LPA (so £164 for both). The registration process can take up to 20 weeks, so it's important to do it well in advance.

DIY or Use a Solicitor?

While you can create an LPA yourself, many people prefer to use a solicitor. A solicitor can provide advice, ensure the forms are completed correctly (mistakes can lead to rejection), and help you consider all the implications. This is particularly important if your financial affairs are complex.