Lasting Power of Attorney

Notes of a meeting of the Independent Elders held 7.8.17


1. Lasting Power of Attorney (“LPA”)

Paul had agreed to share with us his recent experience of managing his parents’ affairs. He clarified that he is not a lawyer, but speaking from his own experience. He then outlined the issues:

A Lasting Power of Attorney can be given by someone (the “donor”) with mental capacity to a trusted person who can deal with their affairs should the donor subsequently lose mental capacity to look after their own affairs. No-one else, including a spouse or civil partner, can legally make decisions on someone else’s behalf, without an LPA.

There are two kinds of LPA – one for financial affairs and one for health and welfare. There is a separate form for each, and a separate fee and applications are made to and granted by the Court of Protection. It’s possible to do the forms yourself, or instruct a solicitor. Choose an established firm with people who specialise in this area. Paul suggested that if several people wanted a solicitor to draw up LPA’s they might be able to negotiate a bulk fixed fee. Financial institutions will be more rigid about only acting if there is a formal Power; some health and care providers may be more relaxed.

It is sensible to choose an Attorney who is younger than you. You can appoint two or more Attorneys and choose whether they have to act together or can act separately (particularly useful if, for example, one lives far away.) You can also appoint a professional Attorney (eg solicitor) who will charge. When the application is made, other close relatives/friends are notified as a protection against someone taking advantage of a vulnerable person (and if anyone suspects this is happening to a friend or relative they should contact the Office of the Public Guardian who handle the administration of LPA’s. If there are issues about a vulnerable person and their care in a nursing/residential home, contact the Local Authority Adult Social Care department).

There are some alternatives for certain things – for a bank account it’s possible to add a signatory who can then access your account, and for the Pension Service you can apply for a nominated person to act for you (they, and you, will be interviewed separately before this is set up). Only a LPA covers everything.

If someone has already lost mental capacity they can’t grant a LPA. Instead, anyone helping them has to apply to the Court of Protection to become a Deputy. This is a much more complex and lengthy process and may still give limited powers (eg Paul could not act for his mother to sell the house she jointly owned with his father without getting special permission from the Court). A doctor can confirm whether someone has mental capacity or not. Much, much better and less costly to grant a LPA while still capable. If you already have an old style (Enduring) Power of Attorney it is still probably valid.

The Court of Protection website is helpful and so is Age UK

Paul also explained how someone’s house is treated if they have to go into a care home and be assessed for fees. If they have a partner living in the house, it is disregarded as an asset and they are assessed only on any other income and capital they may have. However, if the partner then also goes into a care home the house then becomes a financial asset and both partners will be reassessed and will have to sell the house.

Everyone expressed appreciation for Paul’s explanation – very helpful. Debby also offered to find and re-circulate notes of an earlier Elders session with David Turner who talked to us about older people’s health and end of life issues.