LPA – who decides I have lost capacity?

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Who decides I have lost capacity?

Your attorneys will decide if you have lost capacity. If there is a dispute over this, the OPG can adjudicate.

Your attorney(s) decide the point at which you have lost capacity.  It will sometimes be obvious (eg stroke or accident), but more often than not it will be a gradual process (eg with dementia).

It is this grey area where donors lose capacity over time that seems to cause concern.  A fear of attorneys prematurely taking over the management of affairs is a concern we hear a lot as LPA solicitors.   Understandable as those concerns might be, there are numerous reassurances to be had (below).

To understand how this works in practice, let’s first remind ourselves some LPA basics.

What is an LPA?

A Lasting Power of Attorney (often called an LPA) allows someone (the Attorney) to do stuff on your behalf should you ever need or want them to.  It is a UK thing.  There are two types of LPA:-

  • Property & Finance – as the title suggests this is for money and ‘bricks and mortar’
  • Health & Welfare – this relates to care, right through to end of life treatment decisions

Who are the key parties in an LPA?

The key parties in an LPA are:-

  • Donor – person making the LPA
  • Certificate Provider – confirming that the donor is of sound mind, understand the LPA, and is not being put under duress to make it
  • Attorney – the appointed person who will do the work if needed on behalf of the donor
  • OPG – Office of the Public Guardian (with whom the LPAs will be registered)

When can an LPA be used?

LPAs can be used:-

  • Property & Finance – as soon as it has been registered with the OPG, even if the donor still has capacity
  • Health & Welfare – ONLY once the donor has lost capacity (and obviously it must be registered)

When do LPA’s get used?

Whilst you ‘can’ use a Property & Affairs LPA immediately after registration, the practical reality is that both types of LPA are typically only used when the donor has lost capacity.

Capacity v Registration

It’s this point around capacity being lost that seems to cause people concern [when making LPAs].  Under the old regime of EPAs (Enduring Power of Attorney), registration with the OPG would only happen when capacity was lost (or being lost).  It included this ‘check valve’ at this critical point.

The LPA regime is different.  Registration can take place as soon as the forms are completed.  And, there is then no contact needed with the OPG [when capacity is lost] – it is for the attorney to decide.  The only point at which the OPG/COP would be needed is where there is a dispute.

Capacity – have you chosen the right attorney?

If you are concerned about your chosen attorney(so) taking over your affairs too early, our first question would be – have you chosen the right attorney?!  To get the most from an LPA there is a strong argument to choose your attorneys well, and even try to resist tying their hands too much (for example with restrictions).  If you can leave the way clear for them to look after things for you without shackles, you perhaps maximise the chances of things being done as they need to be.

Using a Health & Welfare LPA

A Health & Welfare LPA can ONLY be used after capacity is lost.  But, remember that this is likely to be when dealing with the care homes, and or the medical authorities.  These institutions will very likely have the necessary expertise to decide for themselves that capacity has been lost (and the LPA is therefore now valid and useable).  And, if there is any uncertainty around that, an independent capacity assessment can be obtained.

Using a Property & Affairs LPA

Because there is no requirement for capacity to have been lost [for a Property & Affairs LPA to be used], it can technically be used as soon as it has been registered.  But, remember that your attorney(s) is/are bound by all sorts of obligations including:-

  • Consult with you (even where capacity ie being lost)
  • Act in your best interests
  • Act within the realms of the law

Can an Attorney do things before I lose capacity?

No – of you have told them not to!  They are obliged to consult with as much as possible, even when you are losing capacity.  And, they are in any event obliged to act in your best interests.  Doing something you don’t want them to do is, by definition, not acting in your best interests!

Can an Attorney be removed?

Yes, there are provisions in place for an attorney who acts inappropriately (OPG/COP).  Acting against your wishes when you still had capacity would be one of them!

And, if you did still have capacity, but your attorney was attempting to control things, you could yourself simply apply to cancel the LPA/have them removed.  If they (your appointed attorney) sought to object on the grounds that you had lost capacity then you would simply obtain an independent capacity assessment done to allow the OPG to decide.

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