201912.17

Lasting Power of Attorney – What is it?

Most of us are able to make decisions in our daily lives without any problems. We may need to seek advice or information in order to make the more complex decisions, but most of us are able to evaluate the advice or information and come to a decision.

However, for some people their capacity to make particular decisions about their life can be affected, either temporarily or on a permanent basis. Click here to find out about what Mental Capacity means.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (“LPA”) is a legal document that lets you (known as the “donor”) choose people you trust (known as your “attorneys”) to make certain decisions for you. It is a very useful tool when planning for your future needs and means that you can feel safe knowing that you have appointed people you trust to make decisions on your behalf when you may no longer to be able to make your own decisions.

The attorneys generally start making decisions for you when you lack mental capacity, but you must be over 18 and have mental capacity when you make the LPA and choose your attorney(s), whether for short-term or long-term decision making. Short term decision making could include, for example, allowing the attorney(s) to deal with your property while you are on holiday. In this case the LPA will state when the authority starts and ends. Long term help would involve the attorney(s) making decisions for you on an ongoing basis.

There are two types of LPA. You can make either or both.

  1. LPA for Property and Financial Affairs

This LPA gives your attorney(s) authority to make decisions about your money and property on your behalf.  For example, your attorney(s) can:

  • manage your bank and/or building society account(s);
  • pay your bills;
  • collect any benefits or pension you may be receiving or be entitled to;
  • sell your home.

The LPA for Property and Financial Affairs can be used as soon as it is registered, but you can restrict its use to when you lack mental capacity.

2. LPA for Health and Welfare

  • The LPA for Health and Welfare gives your attorney the power to make decisions about things like:
  • your daily routine, for example dressing, eating and washing;
  • your medical care;
  • moving you into a care home;
  • life-sustaining treatment for you.

Unlike the LPA for Property and Financial Affairs, the LPA for Health and Welfare can only be used when you are unable to make your own decisions.

Choosing your attorney(s)

The most important decision when making the LPA is choosing your attorney(s). You need to be able to trust your attorney(s) to act in your best interest. They need to be at least 18 years of age and have the mental capacity to make their own decisions. They can be a friend, relative, or a professional such as a solicitor who are happy to act as your attorney. Ideally, they should also know you well. You should take care to consider how well they look after their own affairs, for example their finances, before you appoint them as your attorney. Please note that you cannot choose someone who is bankrupt or subject to a Debt Relief Order as your attorney for Property and Financial Affairs.

If you choose more than one attorney for your LPA, you will need to decide if your attorneys must

  • make decisions together (“jointly”); or
  • separately or together (“jointly and severally).

If they can only decide jointly, then they all must agree on each and every decision. If they do not agree, then that decision cannot be taken.

Register your LPA

You must register your LPA with the Office of the Public Guardian. If it is not registered, your attorney(s) cannot make decisions for you. There is a fee for registering the LPA.

Here at Gordons we have assisted clients who have had to apply to become a deputy for a family member who has lost mental capacity and has not made an LPA, to enable them to make decisions about their finances and/or personal welfare.  You can apply to the Court of Protection to become a deputy for someone; however, this can be a long-winded and costly process. This can create difficulties for people who often need to make decisions urgently on behalf of the person who has lost mental capacity.

To avoid this, we recommend that you make your LPA(s) as soon as possible while you have mental capacity. You can make your LPA(s) yourself or you can instruct a solicitor to help you. The LPA is a very powerful document, so care must be taken when completing it. If you need assistance, please get in touch with our Private Wealth Department where one of our expert solicitors will be happy to assist you or alternatively make an online enquiry and we will contact you.