The crucial role of an LPA during COVID-19

Alongside a huge surge in the demand for making a will, the importance of lasting powers of attorney (LPA) is also being recognised. An LPA makes provision for a family member, friend or trusted professional advisor to make important decisions on a person’s behalf if they are unable or unwilling to do so themselves.

Making an LPA is a new concept for many people. Here, we answer some common questions about an LPA and the crucial role it can play.

What is an LPA?

An LPA is a legal document that allows a person (the donor) to appoint one or more other people, known as attorneys, to act on their behalf when they no longer have the capacity to make decisions for themselves or, even in some cases, if they no longer wish to make those decisions personally. This can give the donor the certainty that the people they want to act on their behalf will be given the opportunity to do so.

There are two forms of LPA:

  • LPA for property and financial decisions, which covers matters including paying bills, managing property and investments
  • LPA for health and welfare decisions, which enables decisions to be made about medical treatment and where care can be received. This also covers decisions around life-sustaining treatment.

LPAs can only be used once they have been registered with the Office of the Public Guardian (OPG). An LPA for property and financial decisions can, if desired, be used immediately after registration, and while the donor still has mental capacity, but an LPA for health and welfare can only be used once the donor has lost capacity.

When making any decision using an LPA, the attorneys must act in the best interests of the donor. Attorneys cannot benefit personally from using LPAs (for example, they cannot charge for acting as an attorney unless the LPA specifically provides for this) and should, wherever possible, make every effort to involve the donor in decision making.

Why are LPAs growing in importance during the COVID-19 crisis?

If a registered LPA is in place, it can be very helpful during the ongoing social distancing and ‘stay at home’ measures. For example, if an elderly relative has gone into self-isolation and they have an LPA for property and financial decisions, their attorneys will have the authority to use their bank account for pay bills and buy necessities on their behalf.

Furthermore, in such uncertain times, when the number of people being diagnosed with COVID-19 is rising on a daily basis, should the donor become hospitalised and lose the mental capacity to make their own decisions about medical treatment, having an LPA for health and welfare decisions can give the donor the peace of mind that someone they know and trust will be making those decisions for them.

Does an LPA cover all medical treatment?

This depends on the terms of the health and welfare LPA. When making a health and welfare LPA, the donor must confirm who has the power to make decisions about life-sustaining treatment and whether they wish it to be their attorneys or their doctors. However, it is important to note that ‘life-sustaining treatment’ can vary significantly depending on the medical condition.

What happens if I do not have an LPA?

If you lose the mental capacity to make decisions for yourself without an LPA in place then it may be necessary to make an application to the Court of Protection. This can be a time-consuming and expensive process.

Where a person retains capacity and needs another person to take immediate action on their behalf, there are some short-term measures that can be considered, although these may be less versatile and wide-ranging than if they were operating within an LPA.

Can I appoint someone to handle my financial affairs without an LPA?

A general power of attorney can be prepared to cover financial decisions, but it cannot cover health and welfare decisions. A general power allows another person to act on behalf of someone generally, or for a specific purpose. In relation to the current COVID-19 situation, it could be used to authorise the purchase of food or other items where that person is unable to leave their property. However, it is less flexible and wide-ranging than a property and financial LPA and, crucially, cannot be used once a person loses capacity.

Can I appoint someone to make healthcare decisions for me without an LPA?

It is possible to prepare an advance decision. This allows a person to make provision now to refuse specified medical treatment at a time in the future, when they lack capacity to consent to that treatment. Any healthcare professional providing treating must adhere to an advance decision if it is correctly made and an individual lacks capacity to consent to such treatment at the relevant time. However, advance decisions differ from a health and welfare LPA as they cover only the specific medical treatment and do not consider wider healthcare needs and concerns.

Is it still possible to make an LPA, even though so many places are now closed for business?

Our award-winning team at Sintons are working as we always are. Most of our team are working at home for their own safety, but we have taken many steps to ensure any interruption to client service is kept to an absolute minimum. We are making use of technology, including Zoom and Teams, and of course are always available by telephone. While the usual process of signing and witnessing documents cannot be done due to social distancing, we can advise you on alternative ways of doing this so you can still make your LPA in a legally-binding and safe manner.

The OPG has confirmed it is still open and registering LPAs, but that timescales may be subject to delay given the COVID-19 crisis and the significant demand they are currently seeing.

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