Lasting power of attorney explained

What is lasting power attorney and what are the benefits for you and your family?

A lasting power of attorney (LPA) is a legal document that can provide someone you trust with the authority to help you make decisions or make decisions on your behalf.

Lasting power of attorney is a sensible way of planning for future incapacity, whether arising from injury or illness or from old age.

There are two kinds of lasting power of attorney:

  • property and financial affairs
  • health and welfare

The first deals with property and financial affairs; the second personal welfare, including decisions to refuse or consent to treatment on your behalf and deciding where you live.

Both types of lasting power of attorney can be drawn up at any time while the donor has capacity. However, they have no legal standing until they are registered with the Office of the Public Guardian (the OPG).

In order to protect against the possibility of abuse, it is important to choose the lasting power of attorney carefully and, in so doing, to consult a solicitor.

If you need to appoint a solicitor, go to the Law Society’s convenient search facility.

When a solicitor is involved in drafting a lasting power of attorney, they are required to satisfy themselves that the donor, that is the person giving the legal power of attorney to another, is mentally capable of understanding the nature and effect of the lasting power of attorney

If a solicitor has any doubts, they should seek a medical opinion.

The solicitor also needs to be satisfied that the donor is not being coerced into appointing someone with a Lasting Power of Attorney, or indeed any particular power of attorney.

Advance Decisions, or Living Wills

An advance decision, which is also known as a Living Will, is a document in which the signatory requests that certain medical treatments should, or should not, be given in a particular situation, and if the signatory is unable to consent or refuse such treatment at the time.

Directives in advance decisions are regulated by the Mental Capacity Act 2005 which creates safeguards relating to validity and applicability.

Where an advance decision concerns treatment that is necessary to sustain life, the directive must be in writing, signed and witnessed.

In addition, there must be an express statement that the decision stands 'even if life is at risk'.

It is a good idea to discuss the terms of the directive with a doctor and for that discussion to be recorded in writing and signed by the doctor.

Compassion in Dying have produced an advance decision form and helpful advice.

Tags: Lasting power of attorney Office of the Public Guardian OPG Law Society Advance Decision Living Will Mental Capacity Act Compassion in Dying

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