Your Lasting Power Of Attorney - Why It Is Really Necessary

If at some point in your life you are unfortunate enough to lose the mental capacity

to deal with your legal and financial affairs if it extremely beneficial to have a Lasting Power of Attorney in place. This forward planning will help dictate who will look after these affairs in these circumstances arise.

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 in later life.

Lacking mental capacity is defined as having an injury, disorder or condition that affects the way your mind works which could mean having difficulty in making decisions all of the time or taking a long time to make a decision.

Prior to 2007 these documents were called Existing Powers of Attorney (EPA) but have now been replaced by Lasting Powers of Attorney (LPA). An existing EPA remains valid providing it was registered with the Office of the Public Guardian (OPG) or the donor sitll has capacity. There are two types of 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

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 interestsyour signature and the signatures of your chosen attorneys must be witnessed.

If you lose the capacity to manage your affairs without having put an LPA in place, 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, complex and much more costly procedure which will most likely take three months or longer even if the Order is comparatively straightforward. If you find yourself in the position of having to make an application to the Court of Protection, you're probably better off instructing specialist Court of Protection Solicitors - experts in this complex field.

You are strongly advised to seek professional advice from a solicitor before making an LPA, particularly if you have complicated personal, property or financial affairs and although it can be registered at any time, you may find that your solicitor recommends that that your LPA is registered that your LPA is registered as soon as it is made.

by: Tim Bishop

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