What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) gives another person or persons (known as your ‘Attorney’) the authority to act for you if you are unable to do so for yourself.
Why is it relevant?
Simply, if you lose mental capacity to make decisions for yourself, without a Lasting Power of Attorney in place, it will be necessary for someone else (an advocate) to make an application to the Court of Protection on their behalf for a Deputyship Order to gain “control” over your affairs. This can be incredibly frustrating and time consuming, not to mention expensive exercise whilst the clock is ticking.
Deputyship applications to court can take several months, which could be vital if immediate decisions on care and health needs (or financial matters) are required in the meantime. For example, the administration of lifesaving treatment or the need to resuscitate. If an LPA is in place, then decisive action can be taken swiftly – which could be lifesaving.
Tip: Consider whether it is worthwhile getting an LPA in place as a contingency to cater for life’s unknown events – so that your health and assets can be looked after by someone you trust before you start to lose mental capacity.
What LPAs do I need?
There are two types of LPA: one in relation to property and financial affairs; the other relating to health and welfare. You can have either or both types of LPA.
The legal bit:
An LPA can be made for anyone who is over 18 and understands what they are signing.
Clearly they will need to have mental capacity to make the LPA in the first place.
‘Mental Capacity’ means the ability to make a specific decision at the time it needs to be made. A person with mental capacity has at least a general understanding of:
- the decision they need to make;
- why they need to make it;
- any information relevant to the decision;
- what is likely to happen when they make it.
The guidance says they should be able to communicate their decision through speech, signs, gestures, or in other ways.
Who should I chose as my attorney?
You are putting decisions over your health and wealth in the hands of someone else – so chose carefully and ideally appoint someone you trust!
Your attorney(s) must always act in your best interests.
They do not need to have any legal training.
Your attorney must be at least 18 years old and have mental capacity to make decisions.
Your attorney should be someone you know and trust well, such as your partner, spouse, friends or a family member, or professional advisor (eg your solicitor, accountant) – as they will be likely know you best and have the advantage of living closer for practical decision making and administration purposes.
What can you do about it?
Families should be alert to the fact that if an individual is declining and showing early signs of losing mental capacity, it is vital to act before it is too late.
Our advice is to set up a Power of Attorney as soon as you can. You can seek legal advice or even do this yourself by going to the following link, https://www.gov.uk/government/organisations/office-of-the-public-guardian.
Simply follow the guidance and complete the various forms of Power of Attorney, print them off, and then lodge them with The Office of the Public Guardian. Although completing the LPA can done free online, there is still an Application fee to register each LPA – currently £82.00. So, if say, husband and wife both make a health and welfare, and a financial LPA each (ie 4 LPAs) – then the current cost would be £328.
If you find the form or process daunting, then we suggest you seek professional help.
What can my attorney do?
You can have more than one attorney – which might be good to protect your best interests and share any decision making choices; but equally can potentially make it harder to make decisions together.
You can appoint your attorney(s) to act jointly (ie make decisions unanimously together); or jointly and severally (ie they may act together or independently).
You can appoint substitute attorneys in case your attorney dies or can no longer act. Again they replacement attorney too must be over 18 years old.
You can give your attorney(s) specific instructions as to the type of decisions you want them to make or even that you don’t want them to make as well – ie you can restrict their powers or make them as wide as you want – the choice is yours. They can act jointly on some matters (eg on some important decisions) and individually on others (eg more mundane day to day matters).
It is quite common for husband and wife to be each other’s Lasting Power of Attorney, and in default appoint an adult child/children to be a substitute.
What information do I need to get started?
To make your Power of Attorney, you will need the following basis details:
- the name, address and date of birth of the person who the LPA is for;
- the names, addresses and dates of birth of all the attorneys and replacement attorneys;
- the names and addresses of the Certificate Provider (i.e.an impartial person who confirms the individual understands the LPA and that no one is forcing them to make it); and finally (optional)
- people to notify i.e. you can chose to notify people who will be told when you or your attorneys have applied to register an LPA. Although this is not essential, it gives an extra optional level of protection before it is registered so that other people know about your LPA – in case for example they think you are under pressure or suspect fraud in making the LPA.