A Lasting Power of Attorney (LPA) is the legal tool that allows you to appoint someone to make certain decisions on your behalf. The appointed person can manage your finances for you in the future if you reach a point where you are no longer able to make decisions for yourself. They can, if you so wish, also make decisions relating to your health and welfare. There are two different types of LPA – Property & Financial Affairs LPA and a Health & Welfare LPA. Each typed covers different decisions and there are separate application forms for each. You can choose to make both types or just one. You can have the same Attorney for both, or you can have different Attorneys.
PROPERTY & FINANCIAL AFFAIRS LPA
A Property & Financial Affairs LPA covers decisions about your finances and property. If there comes a time when you cannot manage your finances any more, the Attorney will do this for you. This can include paying your bills, collecting your income and benefits or selling your house. However, if you wish to, you can restrict their powers, or place conditions on what they can do. It can only be used once it has been registered at the Office of the Public Guardian (OPG). It can then be used even while you have mental capacity to deal with these things yourself.
HEALTH & WELFARE LPA
A Health & Welfare LPA allows the Attorney to make decisions on your behalf about your health and welfare, if there comes a time when you are unable to make these decisions for yourself. A Health & Welfare Attorney could make decisions about where you live, for example, or day to day care including your diet and what you wear. You can also give your Health & Welfare Attorney the power to accept or refuse life sustaining treatment on your behalf. You will be asked whether you wish to do this or not on the form, and you will need to state your intention clearly.
BENEFITS OF MAKING AN LPA
There are a number of reasons you should consider making an LPA:-
It can be reassuring to know that, if you are unable to make a decision for yourself in the future, your chosen person will make those decisions for you.
Making an LPA ensures that the person you want to make decisions for you will be able to do so. This prevents a stranger, or someone you may not trust, from having this power.
An LPA can reduce problems that may occur in the future. It can be more expensive and time consuming for family or friends to try and gain a similar power in the future.
WHO CAN BE AN ATTORNEY?
You can choose anyone you wish to be your Attorney, as long as they are over 18. For a Property & Financial Affairs LPA they cannot be bankrupt. Most people would choose a relative or close friend, but you can also ask a professional such as an Accountant or a Solicitor. A professional may charge for their time, and you need to name an individual rather than an organisation or company. The person must also be willing and able to carry out the role. You might also consider appointing a replacement Attorney. A replacement Attorney is the person who you would want to make decisions for you if your first choice Attorney is no longer able or willing to be your Attorney.
When making decisions, your Attorney must follow the Mental Capacity Act. This means that they:
Must act in your best interests.
Must consider your past and present wishes.
Cannot take advantage of you to benefit themselves.
Must keep all of your money separate from their own.
If the Attorney fails to comply, the LPA could be cancelled. If an Attorney is taken advantage of you, this will be investigated by the OPG and the person could be prosecuted. Having an LPA in place can therefore offer you protection from potential future abuse.
DO I NEED A SOLICITOR?
You don’t have to seek legal advice or use a Solicitor. However, an LPA is a powerful and important legal document, and you may wish to seek advice from a legal adviser with experience of preparing them.
OFFICE OF THE PUBLIC GUARDIAN
The Office of the Public Guardian (the OPG) is responsible for the registration of LPAs, including dealing with objections and maintaining the register of LPAs. The OPG also have a contact centre where you can ask questions. The OPG also deals with any issues (including complaints) about the way in which an Attorney is exercising their powers. If there are any problems, the OPG may pass on the case to the Court of Protection who can:-
Decide whether a person has capacity to make particular decisions for themselves.
Make declarations decisions or orders on financial or welfare matters affecting people who lack capacity to make these decisions, for example making a decision about where someone lives.
Decide whether an LPA is valid.
Remove Attorneys who fail to carry out their duties.
Hear cases concerning objections to register an LPA (someone may object to an LPA being registered if they feel that the person was forced into make it, or that the proposed Attorney is not suitable).
EPA – STILL VALID?
Enduring Power of Attorney (EPA) was the previous system for assigning a Power of Attorney. This has now been replaced by LPA. You can no longer make an EPA but any EPA made before October 1st 2007 that was correctly filled in is still valid and can be registered and used. An EPA only covers decisions about finances and property and does not cover health and welfare matters. Because of this, some people who have a valid EPA might make a Health & Welfare LPA as well.
NO LPA – WHAT THEN?
If you don’t make an LPA and become unable to make certain decisions for yourself, there may be a time when no-one can do this for you as no-one will have the legal power to act on your behalf. This can make things like paying bills, including care fees, difficult, as well as making decisions about your future care.
In this case, someone may need to apply to the Court of Protection to become your Deputy. This can give them similar powers to that of an Attorney. The process of becoming a Deputy is a lot more time consuming and expensive than an LPA. There are also ongoing requirements that a Deputy must fulfil such as paying an annual fee and also submitting an annual report, so it is often easier for someone to be an Attorney rather than a Deputy.
Hopefully you will agree the need to put your affairs in order, especially by making a Lasting Power of Attorney. I can help you to achieve this goal. Contact me here at Busbys on 01288 35 9000 for an appointment – home visits can be arranged if disability prevents you travelling to our office.
Chartered Legal Executive, Trust and Estate Practitioner
Full Professional Member of Solicitors for the Elderly
Busbys Solicitors, Bude & Holsworthy.