Lasting Powers of Attorney
Lasting Powers of Attorney
An insurance policy
Lasting Powers of Attorney are like an insurance policy in that you put them in place whilst you have mental capacity and hope that they never need to be used. However, should a time come when you lose the ability to make your own decisions, you will be covered by a document which dictates who should make decisions on your behalf.
There are two different types; an LPA for property and financial affairs, and an LPA for health and welfare. In both documents, you are asked to appoint one or more attorneys (people who can make decisions for you). However, the LPAs give your attorneys different powers; the former allows attorneys to deal with your finances (from dealing with your bank accounts to selling your property), whilst the latter allows your attorneys to make decisions about your welfare (from choosing care homes, to agreeing to or rejecting life sustaining treatment).
You can put both kinds of LPA in place and, indeed, this is the best way to ensure that all of your wishes are carried out should you lose mental capacity.
LPA for property and financial affairs This LPA allows your attorneys to deal with your finances and property.
This can include: - liaising with banks and building societies on your behalf; - making payments from your accounts; and - sell property which you own.
This LPA can be used whilst you still have capacity (provided that you give your attorneys permission to use it). This means that, whether you are physically or mentally unable to deal with your own finances and property, you can appoint other people to help you.
LPA for health and welfare This LPA allows your attorneys to make decisions about your care, from where you should live, to your diet, to how you should be dressed and your daily routine. If you wish, you can also give your attorneys the ability to make decisions about life sustaining treatment.
The latter ability can be an invaluable tool if you have a preference regarding life sustaining treatment. You can (and should!) give your attorneys guidance, so that they will know when life sustaining treatment should be refused. For example, it might be that you do not want to your life to be sustained artificially if all that will do is prolong your life with no further benefit to you.
You can provide such guidance in your LPA itself or by preparing an Advance Decision, referred to within your LPA, which is a legally binding document specifying the particular circumstances in which treatment should be withheld and referring to the treatment you wish to refuse (such as CPR, or mechanical ventilation). Spouses are often consulted about these issues if no LPA is in place. However, if you do not wish to place such a burden on your spouse, or would like to ensure that someone else is able to act if your spouse predeceases you or you are unmarried, an LPA can ensure that the loved ones you feel best placed to make decisions for you can have an input.
Why you should get LPAs - Could save you money in the long term. If you lose capacity, have no LPA place, and your affairs must be dealt with (such as selling property to fund your care), your loved ones may need to apply for a Court of Protection order and or appoint a panel solicitor to manage your affairs. This is often a lengthy and expensive process. - Allows you to make your own decisions in advance. - Takes the pressure off your loved ones; they can make decisions in the knowledge that they are carrying out your wishes.
How are LPAs registered? Wansbroughs can register your LPAs for you with the Office of the Public Guardian.
Who should make an LPA? Anyone can become incapable of dealing with their own affairs, either through illness or accident. It is therefore a good precaution to have an LPA in place so that people you trust can make decisions for you, should the need arise.
What does losing mental capacity mean? Someone lacks mental capacity if they have a condition, illness or have suffered an injury which affects how their mind words and renders them unable to make their own decisions. Wansbroughs consult medical experts to verify capacity if there are any doubts.
When does an LPA take effect? An LPA can only be used after it has been registered with the Office of the Public Guardian. We recommend registering your LPAs as soon as possible after signing, so that they are ready to be used should the need arise. It is, however, possible to wait to register LPAs until they are needed (however there is often a delay before they can be used due to the registration process).
Can an LPA be cancelled? Yes, provided that you have mental capacity. Wansbroughs can assist you with revoking your LPAs if you wish.
What if you want to make an LPA but have lost mental capacity? Unfortunately, you cannot make an LPA if you have lost capacity. In this situation, your loved ones can apply for a Court of Protection order so that they can deal with your affairs. This, however, can be a lengthy and expensive process.
What is an Enduring Power of Attorney (EPA)? An EPA allows someone to make decisions for you as if they were acting under an LPA for property and financial Affairs. LPAs have largely replaced EPAs – it is no longer possible to make a new EPA. However, an EPA can still be used provided it was signed before October 2007.
Who should I choose to be my attorney(s)? Anyone can be an attorney, provided they are over the age of 18 (and, in the case of an LPA for property and financial affairs, are not bankrupt). They should be someone that you trust. If you appoint more than one attorney, they can be appointed ‘jointly’ (and must do everything together) or ‘jointly and severally’ (so can act together or independently). You can also appoint replacement attorneys to act in the event that your first named attorneys are unable to act in the future.
The contents of this article were written by Wansbroughs Solicitors in Q1 2019 and were intended for general information purposes only and shall not be deemed to be, or constitute legal advice. This article was posted with the permission of Wansbroughs Solicitors whose views are independent of Keith Montgomery Associates Ltd.