When to make a Lasting Power of Attorney?
LPAs can only be made when the Donor has the mental capacity to do so. They must also be registered with the OPG before they can be used by the Attorneys.
Both of these facts mean it is always better to make an LPA sooner rather than later. If you lose mental capacity before you have made an LPA, you will be unable to do so unless you regain mental capacity, which may be unlikely.
We recommend that all LPAs are registered with the OPG as soon as everyone has signed them. This is so they can be used at short notice in the future, and so you can rest assured that the OPG have seen the documents and confirmed they are sound.
Immediate registration can also avoid arguments between family members later on, for example, if someone is angry they have not been appointed as an Attorney. This is because you can formally notify people of the registration and, whilst you have capacity to make decisions, you will also have capacity to explain your reasons behind appointing your chosen Attorneys.
The role of an Attorney
If you are a Donor, whoever you appoint as your Attorneys, either under an EPA or LPA, will have a duty to act in your best interests when making decisions on your behalf.
When selecting your Attorneys therefore, you must choose people you trust. The rules that your Attorneys must follow, if they need to make decisions for you, are set out in the Mental Capacity Act 2005.
If you have been appointed as an Attorney, you will not be formally supervised or monitored by the OPG or the Court of Protection. That said, we still recommend that you keep good records of the decisions made and actions taken in your role as Attorney, as you could be called upon to produce records of your decisions. This means that if your actions are ever queried, you will be able to show what decisions you have made and why.
You have been trusted by the person making the EPA or LPA to act in their best interests and must always do so. If anyone believes that you are not acting correctly, or are making bad decisions, they can lodge a concern with the Office of the Public Guardian. The OPG will then investigate the concern to see whether there is any cause for concern.
If you are found to be acting outside your authority as an Attorney and/or not acting in the best interests of the person for whom you act, then the OPG can ask the Court of Protection to revoke your appointment and replace you with someone else.