Personal Welfare LPAs
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Assistance and advice- Lasting Powers of Attorney (LPAs)
- Personal Welfare LPAs
You can choose to either:
- Register your LPA now. The documents will be stored safely, and only come into effect when and if you become mentally incapacitated.
- Complete your LPA, but don't register it. Your LPA will be kept with your solicitor, or in a safe place, so that registration can be completed if you lack capacity in the future. You may want to restrict your LPA so that it can only be registered in the event that you lack capacity.
On this page:
Who can set up an LPA?Who can be an attorney?
What about next of kin?
Who judges 'mental capacity'?
How much does an LPA cost?
The importance of registration
Anyone aged 18 or over can set up an LPA.
You need to decide who you'd like to be your attorney.
Your attorney can be any individual aged 18 or over and of sound mind.
Alternatively, you can appoint a Trust Corporation as one of your attorneys, if you wish.
If you have more than one LPA, e.g. a Property and Affairs LPA and a Personal Welfare LPA, you can have the same or different individual attorneys for each.
You can also have more than one attorney, in which case, you must decide whether they work as 'joint attorneys' (i.e. acting together), or as 'several attorneys' (i.e. acting independently).
Currently, you cannot make changes to an LPA once it is registered. So it's best practice to name a replacement attorney in case your original attorney is unable to act on your behalf.
You will also need to think about who you'd like to be notified when the registration is taking place. These named people will then be informed by the Public Guardian when registration has been applied for to make sure your best interests are adhered to.
Relatives are not entitled to notification unless they are the 'named people' in your LPA document, so it's important that you name everyone you trust.
Some people assume that their next of kin would automatically have authority to make personal welfare decisions if they were to become incapacitated.
However, there is no legal right for the next of kin to do this, and problems can arise where family, care providers and medical practitioners disagree about what should be done.
The responsibility for determining whether you have mental capacity rests with the person directly concerned with you at the time.
For example, a solicitor would assess your capacity to instruct them on a legal matter but day-to-day welfare decisions may fall to family members, care workers or medical staff.
Where capacity is an issue, it must be determined on a 'decision specific' basis. So, it is only if you cannot make a particular decision for yourself that your attorney can act for you.
For example, managing a complicated investment portfolio may not be possible, but running a current account might be.
Your attorney must act in your best interests at all times, taking into account your age, past wishes, beliefs and values.
The Mental Capacity Act 2005 sets out five statutory principles relating to the assessment of capacity and how they should be applied. There is further guidance in the Code of Practice. This helps attorneys to assess whether a person lacks capacity to take a particular decision at a particular time.
A solicitor can complete the LPA form for you.
If you have a family solicitor you may wish them to do this. Alternatively, you can choose to complete the forms yourself.
LPA forms are available from the Office of the Public Guardian: www.publicguardian.gov.uk
In order for the LPA to be complete, a qualified individual, such as a doctor, a solicitor, a social worker or an Independent Mental Capacity Advocate, must confirm that you have mental capacity at the time you sign the document.
You'll also need to pay for the certificate to be witnessed by a qualified individual. These costs may vary, so it's worth shopping around.
The importance of registration
Once the document has been witnessed, your LPA must be registered with the Court of Protection at a cost of £150 per registration.
Without registration, it will not be valid.
Please bear in mind that once your LPA is registered it cannot be changed.
However, you can revoke an LPA at any time, providing you still have mental capacity.
Enables your chosen attorney to:
Access your personal information.
Consent to or refuse medical treatment - including life-sustaining treatment.
Decide on your day-to-day care, including what you eat and how you dress.
Decide where you live and who you have contact with.
Decide what social and other activities you can take part in.