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What is Lasting Power of Attorney?

Lasting Powers of Attorney (LPAs) were created under the Mental Capacity Act 2005 replacing the former Enduring Powers of Attorney (EPA) which contained fewer powers.

Their purpose is to meet the needs of those who lack the capacity to look after their own personal, financial or business affairs. The LPA allows them to prepare for their future care by making arrangements for family members or trusted friends to make decisions on their behalf.

Setting Up

It is important to give the content of your LPA serious consideration but it isn’t difficult to do. If your LPA is straightforward you may do this without a legal representative.
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Health & Finance

Discover the difference between the two types of LPA and decide if you need one or both.

Health & Care LPA
or
Financial LPA

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Business Owners

Your business is at risk if you lose mental capacity through illness or incident. LPA ensures the smooth running of your business if you become incapable of running it.
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Individual

LPA may be important if you have a family history of Dementia or Alzheimers. If you’re worried about losing mental function in the future an LPA could put your mind at ease.
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Don’t hesitate, contact us if you are unsure of the service you need or just need some help and advice. Contact Us

The person giving the power is known as the donor. The attorney, in these circumstances, is someone legally appointed to act on behalf of another person and in their interests. The word ‘lasting’ indicates that the power may continue, even if the person no longer has capacity to make decisions on the issue.

You must be 18 or over and have mental capacity at the time you make your LPA. You do not need to live in the UK or be a British citizen. There are 2 types of LPA:

In the future, circumstances might arise whereby you become unable to make decisions for yourself.

For example, you could suffer a brain injury or develop dementia, a mental health condition. If this happens and you cannot make decisions in your own best interest, you are said to lack ‘capacity’. You lack capacity if:

  • You cannot understand information relating to a decision
  • You cannot retain that information for long enough to make the decision
  • You cannot take that information into account when making the decision; or
  • You cannot communicate the decision

The Mental Capacity Act states that capacity must be assumed unless it is proven otherwise. Mental capacity is judged on a decision-by-decision basis: you might have the capacity to decide what you want for tea but not the understanding of what will happen if you refuse life sustaining treatment.

Several people are involved in making an LPA.

Who Is Involved In Making The LPA?

Several people are involved in making an LPA. They are:

The donor –the person making the LPA (you).
Your attorney –anyone over the age of 18 with capacity.
Certificate provider – An independent person who signs the LPA to confirm you understand what you are doing and you are not being pressured to make the LPA. This can be someone you have known for at least two years. or a professional person.

A certificate provider cannot be:

  • Under 18;
  • A relation, their attorney or replacement attorney;
  • Your business partner or employee, or that of your attorney or replacement attorney
  • The owner, director, manager or an employee of a care home in which you live or a member of their family.
  • Your attorney or replacement attorney

Health and Welfare LPA

In an LPA for Health and Welfare, your attorney is able to make decisions about anything regarding your health and personal welfare, including decisions about medical treatment, where you are looked after and the type of care you receive. Other aspects of your care such as what you eat, how you dress and your daily routine are covered under this LPA too. You can make any instructions that in the future, your attorney must follow. Any preferences you have can be taken into account when making the LPA.

You must also decide whether or not you want your attorney to make decisions concerning life-sustaining treatment. If they do not, then all such decisions will be made by healthcare professionals unless you make an Advance Decision to Refuse Treatment (ADNR).

Property And Financial Affairs

A Lasting Power of Attorney for Property and Financial Affairs enables a nominated person to manage your financial assets for you. This role involves a high level of responsibility including:

  • Managing bank/savings accounts
  • Paying bills, managing direct debits, paying off debt
  • Collecting and managing payments such as benefits and pensions
  • Managing everyday finances and budgeting

It is crucial to ensure that you have put a Lasting Power of Attorney for Property and Financial Affairs in place. Also be sure to appoint someone you trust to act honestly, lawfully and in your best interests. Without clear directions made clearly and legally, your money cannot be accessed by anyone else meaning that if LPA is not in place, your assets cannot be accessed, you cannot sell your house or pay bills or even pay for your care.

If you do have a Health and Welfare Lasting Power of Attorney in place you must consider how easily your nominated person can access the funds for your care. For this reason it’s advisable to appoint an attorney for Health and Welfare (see above) as well as a Lasting Power of Attorney for Property and Financial Affairs.

You don’t need to be elderly or infirm to set up a Lasting Power of Attorney for Property and Financial Affairs. It is best to do it whilst you still clearly have the capacity to do so. As unpleasant as it is to consider, everyone should make provisions enabling trusted ones to access their finances should they unexpectedly lose mental capacity.

Frequently Asked Questions

Should you have any questions related toLasting Powers of Attorney please contact us for more info.
01. What are the two types of LPA?
One kind of LPA covers property and finance whilst the other covers your health and welfare. A property and finance LPA allows the people you nominate to act as your attorney to access your bank/savings accounts in order to manage your bills and other payments and investments. A health and welfare LPA, which must be ade seperately, enables the attorneys (who can be either the same or different to your financial attorneys) to make choices regarding your health and care should you become incapacitated. This could be any decision between your resuscitation to the food you eat.
02. I already have an Enduring power of attorney, do I need to make an LPA?
Enduring power of attorney (EPA) is the old system that was in place before LPAs. You can no longer make an EPA. If you made a valid EPA before October 1 2007, it is still valid and can still be registered and used. However, EPAs only cover decisions about finances and property. They do not concern health and welfare decisions. This means that some people with a valid EPA also make a health and welfare LPA so that decisions about their care or treatment are covered.
03. What happens if I don’t make an LPA?
If you don’t have an LPA and become unable to make some decisions for yourself, there may be a period of time when no one can legally make decisions for you. This would cause difficulties as paying your bills, mortgage and care costs would be an issue and decisions about your future care could not be made. In this case, someone would have to apply to the Court of Protection to become your deputy which would give them similar powers an attorney. A relative or friend can apply to be your deputy but a professional, who does not know you, may be appointed. Becoming and acting as a deputy is far more complicated than applying for LPA.
04. Who can be an Attorney?
Anyone over the age of 18 can be an Attorney. Most people appoint close family members as their Attorneys, though they can also appoint friends or their solicitors either jointly with family members or on their own, or as replacements.
05. How many Attorneys can I have?
There is no limit on the number of Attorneys you can have. The number of Attorneys you would choose would depend on your individual circumstances. Sometimes, having one Attorney is sufficient, but at others, three or four Attorneys may be more suitable. It is unusual for people to appoint more than four Attorneys. The most usual number is two.
06. Can I restrict my Attorneys’ powers?
Yes. Within the Lasting Power of Attorney document you can place restrictions on how your Attorneys act for you. For example, you may wish to restrict your Attorney’s authority over certain assets. In reality though, this is uncommon as your Attorney will be someone you trust implicitly. To impose restrictions, in the majority of cases, would seem unnecessary.
07. Can my Attorneys put me into a Nursing Home?
Under a Health and Welfare LPA, our attorney can decide to place you into residential accommodation. However they have to demonstrate that in all the circumstances, it would be in your best interests. Under a property and financial affairs LPA, your attorney can not place you in a home, though they can use your funds to pay for any care you need, whether this is administered at your home or in a care home.

How Do I Make An LPA?

There are main steps in making an LPA:

  1. Nominate your attorney and the other people involved
  2. Complete the form
  3. Register the form with the OPG (Office of the Public Guardian)
  4. There is a fee of £82 to register each of your LPAs (so £164 both an LPA for property and financial affairs and an LPA for health and welfare). If you are on a low income, you may be eligible for a 50% discount. If you are receiving certain benefits you will not pay anything at all. Your LPA must be registered whilst you still have mental capacity. It can’t be used during the registration process which takes approximately 9 weeks. If you lose mental capacity after signing the LPA while you still had mental capacity, your attorney can register it for you.

Step 3 must be completed before an LPA can be used. The OPG manages the LPA registration process and has a register of all LPAs. It can investigate allegations of concern over the way an attorney is acting.

Should I Use A Solicitor?

You do not have to use a solicitor to create an LPA. The application forms from the Office of the Public Guardian (OPG) offer guidance to help you fill them out. You can also complete them online and call the OPG helpline if you have any difficulties or concerns.

On the other hand, If you want to use a solicitor, you will have to pay them to assist you in completing the form. Fees vary, so you might want to contact a few different companies to compare their fees and the service they offer. If you are considering any other types of future planning it may be viable to do it all together.

OUR COMMITMENTS

Who Can I Choose As My Attorney?

Your attorney can be anyone over the age of 18. You might want your partner, family member or friend to adopt the role. Your attorney must be trusted to act in your best wishes whilst respecting your values, making the decisions that you would want. Your attorney must be able to make potentially difficult decisions on your behalf. You should discuss these issues with anyone who you would like to act as your attorney.

Think about who you intend to nominate and ask yourself these questions:

  • Do they understand my wishes?
  • Will they respect my values?
  • Are they able to represent my wishes, even if a doctor disagrees?

How Many Attorneys Can I Have?

There is no limit to the number of attorneys you can have. You can also replace attorneys who if your original attorney is no longer able to act. If you have multiple attorneys then you can choose who makes what decisions.

Your Attorneys Can Act In One Of Three Ways:

Jointly and severally – If you want your attorneys to act ‘jointly and severally’ then they can act either together or alone. If a decision needed to be made on your behalf but someone could only get in contact with one of your attorneys, then that one attorney could make the decision for you.

Jointly – If you want your attorneys to act jointly then they must make decisions together and all agree on the decisions they make. If a decision needed to be made on your behalf but only one of your attorneys could be reached, then that one attorney would not be able to make the decision as all attorneys must agree before any action can be taken.

If an attorney dies then your LPA will become invalid and the remaining attorneys will not be able to make decisions for you. If you replacement attorneys were made, they will step in to act alone.

Jointly for some decisions, and jointly and severally for other decisions – This means you can specify which decisions must be made together and other decisions where they can act alone. When filling in the form if you must specify how your attorneys must act or they will have to act jointly.

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