The Law Society have today published an article confirming what we have seen here at Fishers in the past few years, in that the number of inheritance disputes heard in the High Court has increased dramatically. It is suspected that the rise is due to...
Lasting Powers of Attorney
Anyone can lose the ability to manage their own affairs through accident, illness, or injury. A Lasting Power of Attorney (LPA) ensures that someone you’ve chosen can manage your financial and welfare needs, on your behalf, when you are no longer able to manage them for yourself.
What is an LPA?
An LPA is a legal document that sets out a plan for what will happen to you if you lose capacity and become unable to make decisions for yourself in the future. It allows you to appoint one or more people to help you to make decisions, or to make decisions on your behalf, if you are no longer able. This person is known as your ‘attorney’, and you can choose what decisions they are allowed to make for you.
What are the different types of Lasting Power of Attorney?
There are two different types of LPA you can make and we can help you with both. You may decide to make either one or both together:
- Lasting Power of Attorney Health and Welfare
A health & welfare attorney could make decisions about health care, medical treatment, where you live, and day-to-day matters such as your diet, clothes and daily routine. A Health and Welfare LPA can also include the power to accept or refuse life-sustaining treatment on your behalf.
- Lasting Power of Attorney Property and Financial Affairs
A Property and Affairs LPA provides your chosen attorney with the ability to manage your finances and property. This could include paying your bills, collecting your income and benefits, managing bank and savings accounts, making or selling investments, or buying and selling your house. You can limit the decisions that your attorneys are allowed to make, or place conditions on what they can do. Once registered, a property and affairs LPA can be used even if you are still able to deal with these things yourself.
An LPA can only be used after it has been registered at the Office of the Public Guardian (OPG).
You must be 18 or over and have the ability to make your own decisions when you make your LPA.
Why make an LPA?
Making an LPA is a safeguard for the future but need not necessarily mean you lose control over your affairs.
It can be reassuring to know that, if you are unable to make a decision for yourself, the person you choose will make these decisions for you.
Making an LPA now will make things easier for your family should you lose mental capacity. It will be more expensive, difficult and time-consuming for them to get authority to act on your behalf when you are not able to give it.
The LPA can be revoked at any time while you still have mental capacity, and conditions can be placed upon its use or scope.
Making an LPA can start discussions with your family or others about what you want to happen in the future.
Who can I appoint as my Attorney?
You can appoint one or more people, over the age of 18, to act together or separately on your behalf.
You may wish to appoint people you know and can trust to act in your best interest when making important decisions for you. This could be a relative or a close friend who will take control of decisions and support your wishes.
It is important to choose attorneys who know and understand your exact wishes, who will respect your values and will make the decisions that you would want.
What does it mean to lose mental capacity?
If you are unable to make decisions for yourself, you no longer have “capacity.” There are a number of reasons why you might be unable to make decisions for yourself which could include being unconscious, having dementia, having a mental health condition or having suffered a brain injury or stroke.
How is mental capacity assessed?
The Mental Capacity Act 2005 sets out a two-stage test for assessing capacity that will determine whether a person is able to make a decision for themselves or not. This includes:
- Whether the person has a mental impairment or disturbance associated with conditions such as concussion, dementia, mental illness or symptoms relating to drug or alcohol abuse.
- Whether an impairment or disturbance means that the person cannot make a specific decision when they need to.
The Act also has the following functional tests for capacity to determine if a person lacks capacity because they are no longer able to:
- Understand information in order to make a decision
- Retain information for long enough to make a decision
- Weigh up information to reach a decision
- Communicate a decision
In order to provide you with the necessary certificate for your LPA, your certificate provider will need to be confident that you or your relative fully understands what they are doing and that they can understand the information provided.
If you are unsure about your own mental capacity or that of a relative who wants to make an LPA, it is recommended that you seek professional advice from a medical practitioner, social worker or appropriately qualified person who will be able to assess either your own or your relative’s capacity to make an LPA.
What happens if a person does not have capacity to make an LPA?
If a person has already lost capacity and there is no LPA already in place, we can help you make an urgent emergency application to the Court of Protection for a prompt Deputyship Order. This will give official permission for a Deputy to be appointed who will be able to take over the management of property, financial affairs and personal welfare.
In these circumstances, one or more family members can apply for the role as a Deputy which can help share the burden and responsibility at an already difficult time when dealing with a sick or incapacitated relative.
How much does a Lasting Power of Attorney cost?
Before an LPA can be used, it needs to be registered. The registration fee in England and Wales is £82 per LPA. To register both a Property and Financial Affairs LPA and a Health and Welfare LPA would, therefore, cost £164.
What is the difference between a Lasting Power of Attorney and an Enduring Power of Attorney?
LPAs replaced the Enduring Power of Attorney (EPAs) on October 1st, 2007. LPAs give you greater flexibility than an EPA as you now have the option of taking out either an LPA for Property and Financial Affairs or an LPA for Health and Welfare or you can choose to have both.
They also give better protections as, unlike the EPA, an LPA requires the person who is making the LPA to be certified that they have the necessary mental capacity to understand the reasons for making an LPA, are in full control of what they are doing and are not subject to any pressure, coercion or fraud. The certificate provider must be satisfied that this is the case and will complete a statement confirming this in the LPA before the certificate can be granted.
Can you still use an Enduring Power of Attorney?
You will still be able to use an EPA if it was signed prior to October 1st, 2007 as it will still be valid and can still be registered with the Office of Public Guardian. You can no longer make a new EPA, or amend an existing one, but you can decide if you want to revoke it or register it.
Can you amend a registered Lasting Power of Attorney?
Once an LPA has been registered, you will not be able to amend or change it without having to complete a new form and pay the registration fee again. For this reason, it is very important that you check the form thoroughly to ensure everything is correct before you send it off to the Office of Public Guardian.
Small amendments like spelling mistakes can be corrected but you will need a witness to see where you have crossed through and input the correct details.
If a larger amendment is needed, such as in the case where you have changed your mind about who you want to have as your attorney, you will need to download a new form and start the process again and you must still have the legal mental capacity to implement these changes yourself.
Can you end or cancel a Lasting Power of Attorney?
If you have made an LPA and you still have legal mental capacity, you can cancel it or end it at any time. Once it has been registered, you will need to revoke the agreement with a Deed of Revocation which needs to be signed, dated and witnessed before being sent to the Office of Public Guardian. You will also need to notify your attorneys that your LPA has now been cancelled.
Where should you keep and store your LPA document?
It is important that you keep your LPA document in a safe and secure place, once you have received it back from the Office of Public Guardian.
The original document, and any copies you have made, need to be accessible to your attorneys as these will be needed when your attorney needs to make decisions on your behalf. Copies can be obtained from the Office of the Public Guardian for £35 and you may need several since they may be requested at regular intervals by various institutions.
Why choose Fishers Lasting Powers of Attorney Solicitors?
Since an LPA is a powerful document, you should always seek professional advice and assistance in drafting and registering an LPA.
Fishers Lasting Powers of Attorney Solicitors can help you to understand the important decisions, and the implications those decisions could have. Our team of professional lasting powers of attorney advisors have advised on many LPAs and can explain the different considerations you must make.
For further information or to book an appointment, call your nearest office or complete an enquiry form and a member of our team will call you back.