Lasting Power of Attorney
The good news that many people are now living longer means that planning for the future has never been more necessary.
An important issue to consider is what would happen if you lost capacity?
Who would look after your affairs, make decisions on your behalf, who will honour your
wishes and ensure your best interests are protected?
All of these issues can be managed with a Lasting Power of Attorney (LPA) Here I aim to look at the benefits of an LPA and the problems that can be encountered without one.
This is a brief overview. I am happy to discuss all aspects of Lasting Powers of Attorney at greater length, with no obligation, if you feel you would like more information before coming to a decision about creating an Lasting Power of Attorney, call or email me today.
What is a Lasting Power of Attorney ? (LPA)
A Lasting Power of Attorney (LPA) is a legal document which enables you, the donor, to appoint one or more attorneys that you trust to manage your financial and/or health and personal welfare affairs should you be unable to yourself due to illness or accident.
What happens if I don't have a LPA ?
An LPA can only be made whilst you have mental capacity.
Should you lose mental capacity and an LPA is not in place there is no one who has an automatic right to handle your affairs. This includes spouses, civil partners, family and friends. It would be necessary for family or those close to you
to make an application to the Court of Protection to be
appointed as your “Deputy”.
This can be a much more costly and time consuming process.
Court costs include an application fee of £400 and registration fee of £500. Once granted there follows a requirement to account to the Public Guardianship Office annually for all of the income and expenditure of the patient. Furthermore, the Office of the Public Guardian also take a percentage of the annual income as payment for overseeing the accounts and solicitors fees will also add to the costs.
This process can take up to 6 months during which time your
financial affairs are effectively frozen. This can pose significant problems, as you can imagine, for a partner who holds a joint bank account with you, and with regards to paying bills and
All welfare decisions during this time must be made by your
medical team and/or social services, based on what are
deemed to be your best interests. These best interest decisions
might, of course, not actually reflect your true wishes.
Creating an LPA eliminates all this added expense and hassle and, perhaps most importantly, allows the donor complete control over what happens to their financial and health and welfare affairs by allowing them to specify a range of guidelines and restrictions.
When I register LPAs with the Office of the Public Guardian will I no longer be able to make decisions for myself ?
Most certainly not. The purpose of an LPA is to allow people to make decisions for you in the future, if you can no longer make them yourself. It does not mean that from the moment you complete the forms your attorney takes over making decisions for you.
If you make a health and welfare LPA, your attorney cannot make decisions unless there comes a point where you cannot make them yourself. The decision that you genuinely cannot make these decisions for yourself must be made in accordance with strict guidelines laid out in the Mental Capacity Act 2005.
If you recover your mental capacity, for example after an illness, then your attorney must allow you to recommence making decisions for yourself.
This is different from the property and affairs LPA, which allows you to say whether you want your attorney to be able to act while you still have capacity. If you do, they wouldn’t be taking over from you, as you will also be able to act. It means that your attorney will be able to help you manage your finances.
When making either Health and Welfare or Property and Financial Affairs LPAs you specify the person or persons who must be notified if your attorney/s wish to activate your LPA. This adds another layer of protection and accountability.
Furthermore, when making decisions, your attorney must follow strict principals set out in the the Mental Capacity Act 2005
An LPA is essentially about giving you control by allowing you to choose exactly who you want to make decisions for you andgiving you the opportunity to specify your wishes to them.
You can cancel an LPA at any time as long as you are mentally capable. You can also make a new one at any time, again, providing you are
still mentally capable.
Who should have an LPA ?
The simple answer to this is, everyone. It is a sad fact of life that illnesses both age related and non age related and accidents can and do happen to anyone at any time. There is no benefit to be had from worrying about such things however there is great benefit to be had from putting sensible measures in place with regards to future financial, health and welfare care. Think of it as an insurance policy and once done, like a Will, it can offer a great deal of comfort and security.
Are there different types of LPA ?
Yes, there are two different types:
A Property and Financial affairs LPA authorises your chosen attorney to make decisions relating to your finances. From managing bank accounts, investments or property to ensuring the mortgage, bills, taxes or even your care are paid for immediately and without disruption.
A Health and Welfare LPA relates to decisions surrounding your personal wellbeing. For example, your level of care, consenting to or refusing medical treatment or life-sustaining treatment, where you should live or day to day decisions such what you wear or eat. Unlike a Property and Financial affairs LPA a Health and Welfare LPA can only be used if you have lost mental capacity.
Cloveroak Wills can guide you through the process of making and registering LPAs. In a home visit consultation I will take your instructions and complete all of the paperwork for you. This includes the LPA itself, a Notice to an independent third party called a certificate provider who verifies your capacity, and the Application to Register at the Office of the Public Guardian. Meeting face to face means that I can outline your options, discuss the implications of making a Lasting Power of Attorney and answer all your questions. It also allows me to assess your capacity to make an LPA and therefore act as your certificate provider, if you would prefer this to involving friends, family or neighbours.
I will then draft your documents and return for a second meeting to supervise the correct signing and witnessing. I provide full guidance and support to your attorneys and am available to answer any questions they may have about their role.
Included in my service is the preparation of your documents for registration with the Office of the Public Guardian (OPG). I remain associated with your case throughout this process meaning that I deal with any questions the OPG may raise. I also cover any fees for re submissions, unless the original application is rejected due to incorrect information being supplied or someone objecting to the registration on the prescribed grounds permitted by the OPG.
For more information or to book an appointment call 07873 959 741
email or use the contact form below.
07873 959 741
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