Why Should I Make A Lasting Power of Attorney?

A lasting power of attorney (LPA) puts plans in place should you become incapable of managing your affairs or lose mental capacity during your lifetime.  LPAs are time-critical documents and you must have mental capacity when arranging one.

Drawing up a Lasting Power of Attorney now means  that you still have control over your affairs when you need it most - in the future.

Appointing an Attorney 

When you make an LPA, you can select someone or multiple people whom you want to make decisions on your behalf for when you do not have the mental capacity to make decisions for yourself in the future.  These people are known as your attorneys. Your attorneys must be over the age of 18 and have the mental capacity to make decisions.  It is important that you choose people whom you trust explicitly to make decisions for you. 

If you chose more that one attorney, you must specify whether your would like them to work together and agree unanimously on every decision, or whether you are content for them to make decisions individually.  You can specify any decisions that you would like to be made unanimously.

What is the role of the Attorney ?

The person you appoint as your Attorney will have the legal authority to make decisions on your behalf should you lose your mental capacity or you feel that you do not want to make personal decisions anymore. They will have access to your bank/building society accounts, manage your property affairs and sign for decisions around finances, medical and ongoing care. The Attorney has a duty of care to you and your financial accounts must be kept separate from theirs. All financial dealings must be recorded.

Types of LPA

There are two types of LPA: one to cover your health and welfare decisions, and another separate document to deal with your property and finances.

A Health and welfare LPA can only be used by your attorney(s) should you lose mental capacity. The LPA can cover decisions such as where you live, who you see, what you eat and what medical treatment you receive. It can even go as far as authorising your attorney to consent to or refuse life sustaining treatment on your behalf if you choose to give them this authority.

The Property and Finance LPA covers matters such as the sale of your house and the use of your bank account(s) or investments. You can word the LPA so that it takes effect on registration and can then be used by your attorneys from that point onwards, even if you still have capacity to make decisions for yourself. This can be useful in certain circumstances and is something we would discuss with you when taking your instructions.

What happens if I lose capacity without an LPA in place?

If you don’t have an LPA (or an EPA pre-2007) in place and you lose capacity, you will have to apply to the Court of Protection who will make an order about decisions on your finances, health or care, or appoint a deputy to act on your behalf. It is far safer, to appoint someone you trust while you still can.

Making an Application

When making an application, you are given the opportunity to specify what you would like your attorneys to do and what they must do when making decisions. There is an important distinction between the two and it is important that you make your wishes clear.

There are a set forms that must be completed and sent to the Office of the Public Guardian with a fee to create an LPA. Once sent, the Office of the Public Guardian (OPG) typically take around four months to check they are satisfied with the forms and to register the LPA. Sealed copies will then be issued by the OPG. These are extremely important documents that should be stored safely. Your attorneys can then use them as proof of their authority to make decisions on your behalf, should you become unable to do so.

Speaking with a professional can be helpful in advising you about instructions and preferences and ensuring that your wishes will be understood by your attorneys in the future and are allowed under the guidance from the Office of the Public Guardian.