FAQs About Donors in Lasting Power of Attorney

Discover clear answers to common questions about donors in Lasting Power of Attorney. Learn who donors are, their responsibilities, and key considerations when setting up an LPA. This guide simplifies everything you need to know about donors.

The ‘LPA donor’ is the person appointing other people to make decisions on their behalf. The LPA donor:

  • Must be 18 or over
  • Must be able to make their own decisions at the time their LPA is made—this is known as having mental capacity

Only the LPA donor can make decisions about their LPA and the people involved.

It’s OK for the LPA donor to get help making their LPA. Many LPA donors talk to family, friends, or a legal adviser. However, the LPA donor must make their own decisions about their LPA. For example, no one else should choose the LPA donor’s attorneys for them.

If the LPA donor uses more than one name or used to be known by a different or maiden name, include a list of these names in the ‘LPA donor details’ section of the LPA. This will help LPA attorneys deal with banks and other organisations on the LPA donor’s behalf.

An LPA donor must be at least 18 years old.

There are rules about bankruptcy and debt relief orders (DROs) for a property and financial affairs LPA. If the LPA donor is bankrupt or subject to a DRO, they can make, sign, and register a property and financial affairs LPA. However, their attorneys will not have power over all the LPA donor’s property.

The LPA donor should think about getting legal advice before they make an LPA. The LPA will be cancelled if the LPA donor becomes bankrupt or subject to a DRO after their property and financial affairs LPA is made or registered. Bankruptcy and DROs do not affect a health and welfare LPA.

The LPA donor should think about getting legal advice on making an LPA if:

  • The LPA donor lives outside England and Wales
  • The LPA donor has property outside England and Wales
  • The LPA donor is planning to move away from England and Wales
  • There are other reasons why where the LPA donor lives could cause complications

Mental capacity is all about your ability to make your own decisions. It’s more than just understanding information; it’s about being able to process that information, weigh up the options, and communicate your choices. Most of us take this ability for granted, but there are situations where it can be compromised. For instance, mental capacity can be affected by an illness like dementia, a serious accident, or even a temporary condition like delirium or a severe mental health issue. When someone loses mental capacity, they might not be able to fully grasp the consequences of a decision, which is why having an LPA in place is so important.

The ability to make decisions is legally defined by the Mental Capacity Act of 2005. This Act sets out the criteria for assessing whether someone has the mental capacity to make a particular decision at a particular time. According to the Act, you might be considered to lack capacity if you can’t:

  • Understand the Information: You need to grasp what’s involved in the decision, including any possible outcomes.
  • Retain the Information: You should be able to remember the information long enough to make the decision, even if you can only hold onto it for a short time.
  • Use or Weigh Up the Information: This is about being able to compare the pros and cons, and understand the risks and benefits, to make a balanced decision.
  • Communicate Your Decision: Even if you can’t speak, you should be able to communicate your decision in some way—whether that’s through sign language, writing, or even simple gestures.

If you struggle with any of these steps, you may be considered to lack mental capacity, and that’s where your chosen LPA attorney steps in to help.