A guide to setting up lasting powers of attorney in England and Wales. For more information contact Gary Coleman on 0208 979 1131

1. Lasting Powers of
Attorney
Taking Control of Your Future
Gary Coleman, Partner, KWW Solicitors
January 2014
Telephone: 0208 979 1131

2. Contents
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Mental Health Act
Property and Financial LPA
Health and Welfare LPA
How To Set Up an LPA
Choosing an Attorney
Making Decisions on Your Behalf
Living Wills – Advance Decisions and
Statements

3. Longevity Comes With a Price

5. What is Mental Capacity?
• Having mental capacity means a person is able to
make their own decisions
• If you’re unable to make your own decisions at some
point in the future, someone else will need to do so
• These could be decisions about your property and
financial affairs, such as paying your
mortgage, investing your savings or buying items
you need, or decisions about your personal
welfare, such as what you should eat, or what type
of medical treatment you should have.

6. What is Mental Capacity?
• Before someone can make a decision on your
behalf, they must have reasonable belief that you
cannot make that particular decision yourself.
• The words ‘reasonable belief’ are important
because capacity can change over time. The
person making a decision for you must make sure
they are acting in your best interests.

7. Lasting Powers of Attorney
• A way of giving someone you trust the legal
authority to make decisions on your behalf if you
lack mental capacity at some time in the future
or no longer wish to make decisions for yourself
• Valid only in England and Wales
• Replaced Enduring Powers of Attorney in 2007
• Two types: Property & Financial; Personal
Welfare.

8. Lasting Powers of Attorney
• A way of giving someone you trust the legal
authority to make decisions on your behalf if you
lack mental capacity at some time in the future
or no longer wish to make decisions for yourself
• Valid only in England and Wales
• Replaced Enduring Powers of Attorney in 2007
• Two types: Property & Financial; Personal
Welfare.

10. A Word of Caution
• Your Power of Attorney is possibly the most
serious document you will ever write
• Everyone has their own circumstances that need
to be established and recorded correctly
• You should be wary about attempting the
process using an online service or doing it yourself
as the document may fail and/or result in an
undesired outcome.

11. Property & Financial Affairs LPA
An attorney (the person who makes decisions for
you) can generally make decisions on things such
as:
o Buying or selling property
o Paying the mortgage
o Giving people access to the financial
information of the donor (person who creates
the LPA)
o Investing money
o Paying bills
o Arranging repairs to the property.

12. Personal Welfare LPA
Covers decisions about healthcare and personal
welfare. Attorneys can generally make decisions
about:
o Where the donor should live
o Whether the donor should consent to a
certain type of medical treatment
o Who they should have contact with
o What they should eat
o What social activities they
should take part in.

13. When is an LPA Valid?
• An LPA will be valid only if you have the mental
capacity to set it up and have not been put under
any pressure to create it. It must be your
decision and you must be able to trust your
attorney
• The LPA must be signed by a certificate
provider who confirms you understand it and
haven’t been put under any pressure to sign it.
They must be someone you know well or a
professional person
• The LPA must be registered with the Office of

14. Setting up an LPA
• STEP 1: Choose your attorney - a person/s you
trust, who will act in accordance with your
instructions and who you know will have your
best interests at heart if you are incapacitated
• STEP 2: Decide which LPA you want. Or you
may wish to have both
• STEP 3: Get the LPA forms and information
pack from the Office of Public
Guardian, download them,
or talk to KWW and we can do it all for you.

15. Setting up an LPA
• STEP 4: Appoint a certificate provider. This is
someone who speaks with you privately to
ensure you know what powers you are giving to
your attorney, that there has been no fraud or
pressure and who certifies that you fully
understand what you are doing. Cannot be a
family member!
• STEP 5: Register the forms at the Office of The
Public Guardian in the UK and Wales. This can
take up to 10 weeks.

16. Choosing an Attorney
• The role of attorney involves a great deal of
power and responsibility. You should trust the
person
• Your attorney could be a family member, a
friend, your spouse, partner or civil partner. Or
they could be a professional, such as a solicitor
• Attorneys can claim back expenses they incur as
a result of their role. They can claim these from
your money, keeping an account of any
expenses and relevant receipts.

17. Making Decisions on Your
Behalf
When someone is acting as your attorney under a
LPA they have to follow certain principles set out in
the Mental Capacity Act. These are aimed at
making sure you are able to make your own
decisions as much as possible, and that if this is
not possible, your attorney makes the right
decisions on your behalf.

18. Principles of Decision-Making
• Presumption of capacity: Unless it can
established otherwise
• The right to be supported to make a decision: All
practical steps must be taken to help a person
make their own decision
• The right to make what appears to be unwise
decisions
• Best interests (see over)
• Least restrictive intervention: Having considered
all effective alternatives.

19. Best Interests: How Can I Be
Sure?
When someone takes a decision in your best interests
they must:
o Do everything possible to encourage you to
participate in the decision-making
o Consider your past and present feelings, taking into
account any statement of your wishes
o Consider your feelings, beliefs and values and consult
with family, carers and friends, who might know about
how these would affect your decisions
o Always remember your right to privacy
o Know about any exceptions such as decision to
refuse medical treatment.

20. Typical Questions Answered
What if I’ve already created an EPA?
If it was set up before 1 October 2007, naming someone as your
attorney, it might still be valid. You might already be using it
without having registered it, so someone can act on your behalf
(unlike an LPA, which must be registered before use). This is
fine, until you become unable to make your own financial and
property-related decisions. Once this happens, the EPA must be
registered before your attorney can take any further action on
your behalf. At this point it’s the responsibility of your attorney to
register the EPA with the OPG. An EPA only covers decisions
about your property and financial affairs; an attorney doesn’t
have power under an EPA to make decisions about your health
and welfare. You might want to consider setting up a Personal
Welfare LPA to work alongside the existing EPA.

21. Typical Questions Answered
What if I no longer have capacity to make an LPA or
EPA?
The Court of Protection may need to become involved. It can decide
whether someone has the mental capacity to make a decision and
make an order relating to the personal welfare or property and financial
affairs of someone who lacks mental capacity. It can also appoint a
deputy to make decisions on behalf of someone who lacks mental
capacity. Someone who wants to make decisions on your behalf can
apply to the court to be appointed as deputy. This is a similar role to
that of attorney. The court will consider whether it is necessary for
ongoing decisions to be made on your behalf, and whether that person
is suitable to be appointed to that role. The court usually does
everything by post rather than holding a hearing. If you have an existing
EPA, the
attorney may apply to act as a deputy in certain circumstances. You
can’t choose your deputy and the process of appointing one can be

22. Living Wills
• A Living Will lets you indicate what type of
treatment you want, or refuse some types of
medical treatment in certain situations if you lack
capacity to make or communicate your decisions
at the time.
• The term ‘living will’ doesn’t have a legal
meaning but usually refers to either an Advance
Decision or an Advance Statement.

23. Advance Decisions and
Statements
• Advance Decision covers the types of treatment a
person does not want. It must be made by someone who
has the mental capacity to make it and communicate it.
Although the decision doesn’t have to be in writing, it is
more likely your wishes will be upheld if it is. It’s legally
binding, meaning it must be respected by the person
providing your treatment.
• Advance Statement covers any decision about how you
would like to be treated, including non-medical matters
such as your food preferences, religious or other beliefs,
and
even whether you would prefer a bath or shower. It isn’t
legally binding but should be taken into account when
deciding what’s best for you.

24. Thank you!
For more details contact me on 0208 979 1131