All You Need To Know About A Lasting Power Of Attorney
What consequences are there if I don't draft an LPA
?
If you lose the capacity to manage your affairs without an LPA, the only option available is for a trusted person to apply to the Court of Protection for a Deputyship Order enabling them to manage your affairs. This is a lengthy and more costly procedure which will most likely take three months or longer even if the Order is straightforward. If, however, you do find yourself going down this route, please note it involves a complex area of law and you should really appoint specialist Court of Protection Solicitors. What is a Lasting Power of Attorney?
A Power of Attorney enables you to plan in advance how your affairs will be looked after if you lose mental capacity, who will make decisions on your behalf and how they make them. It can be used at any time, providing you with peace of mind in the knowledge that a trusted person has the legal authority to manage your property, financial, health and welfare affairs.
What are the different types of LPA?
There are two types of Lasting Powers of Attorney (or LPA):
(a) Health and Welfare which allows you to choose one or more people to make decisions for things such as medical treatment and can only be used if you lack the ability to make decisions for yourself;
(b) Property and Financial Affairs which allows you to choose one or more people to make these decisions for you, such as paying bills or selling your home. You can appoint somebody as an Attorney at any time but also include a clause stating that they can only make decisions once you lose the ability to do so yourself
What is an Enduring Power of Attorney (EPA)?
Prior to 2007 these documents were called Existing Powers of Attorney (EPA) but have now been replaced by Lasting Powers of Attorney. An existing EPA remains valid providing it was registered with the Office of the Public Guardian (OPG) or the donor sitll has capacity.
Who can make an LPA?
Anyone who is over 18 and who has capacity.
Who can be an Attorney?
An LPA is a very powerful document and so care should be taken to ensure that you choose somebody you trust. You can appoint a family member, friend or anyone willing to act so long as they are over 18. You could also appoint a professional person.
If you choose more than one attorney they can be appointed to act together (both attorneys to sign everything) or together and independently (either attorney to sign). You can also appoint a replacement attorney who can step in should your original attorney become incapable of acting.
Can I cancel my LPA?
It is not an irreversible decision and you have the right to cancel if your circumstances change. However an LPA is a safe way of maintaining control over decisions made for you because:
it has to be registered with the OPG before it can be used; you can choose who is informed about your LPA when it is registered (so they have an opportunity to raise concerns); you choose someone to provide a 'certificate', which means they confirm that you understand the significance and purpose of what you're agreeing to; your attorney(s) must follow the Code of Practice of the Mental Capacity Act 2005 and act in your best interests; your signature and the signatures of your chosen attorneys must be witnessed
What happens if I don't draw up an LPA?
If you lose the capacity to manage your affairs without an LPA, the only option available is for a trusted person to apply to the Court of Protection for a Deputyship Order enabling them to manage your affairs. This is a lengthy and more costly procedure which will most likely take three months or longer even if the Order is straightforward. If, however, you do find yourself going down this route, please note it involves a complex area of law and you should really appoint specialist Court of Protection Solicitors.
Do I need a solicitor to make an LPA?
No. However, the forms are very complicated, and mistakes can render the form invalid. You are strongly advised to seek professional advice from a solicitor before making a Lasting Power of Attorney, particularly if you have complicated personal, property or financial affairs. Although it can be registered at any time, we recommend to our clients that this be done as soon as it is made. For more information about Lasting Powers of Attorney, contact a specialist solicitor.
by: Tim Bishop
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