Only adults aged 18 or over can make an LPA, and they can only makean LPA if they have the capacity to do so.
1. Personal welfare LPAs
LPAs can be used to appoint attorneys to make decisions about personal welfare, which can include healthcare and medical treatment decisions. The standard form for personal welfare LPAs allows attorneys to make decisions about anything that relates to the donor’s personal welfare. But donors can add restrictions or conditions to areas where they would not wish the attorney to have the power to act. A personal welfare LPA can only be used at a time when the donor lacks capacity to make a specific welfare decision.
A personal welfare LPA allows attorneys to make decisions to accept or refuse healthcare or treatment unless the donor has stated clearly in the LPA that they do not want the attorney to make these decisions. An attorney can only consent to or refuse life-sustaining treatment on behalf of the donor if, when making the LPA, the donor has specifically stated in the LPA document that they want the attorney to have this authority.
2. Property and affairs LPAs
A donor can make an LPA giving an attorney the right to make decisions about property and affairs (including financial matters). Unless the donor states otherwise, once the LPA is registered, the attorney is allowed to make all decisions about the donor’s property and affairs even if the donor still has capacity to make the decisions for themselves. In this situation, the LPA will continue to apply when the donor no longer has capacity.
Alternatively a donor can state in the LPA document that the LPA should only apply when they lack capacity to make a relevant decision. The fact that someone has made a property and affairs LPA does not mean that they cannot continue to carry out financial transactions for themselves. The donor may have full capacity, but perhaps anticipates that they may lack capacity at some future time. Or they may have fluctuating or partial capacity and therefore be able to make some decisions (or at some times), but need an attorney to make others (or at other times). The attorney should allow and encourage the donor to do as much as possible, and should only act when the donor asks them to or to make those decisions the donor lacks capacity to make. However, in other cases, the donor may wish to hand over responsibility for all decisions to the attorney, even those they still have capacity to make.
If a donor does not restrict decisions the attorney can make, the attorney will be able to decide on any or all of the person’s property and financial affairs.