Why do I need a Lasting Power of Attorney?
No one would relish the prospect of losing their mental capacity. Often it is a family member or friend who will start to notice when someone is starting to forget straight forward aspects of daily life. When the ability to deal with one’s finances is lost, bills go unpaid. Banks and utility companies will refuse to disclose information to anyone other than the customer quoting, often erroneously, the Data Protection Act, so it is difficult to step in and provide help without the legal authority to do so. This also applies when decisions need to be made about welfare, including the need for care at home, in hospital or a residential care setting. By creating a Lasting Power of Attorney (LPA) when you have the mental capacity to do so, you appoint someone you know and trust to make decisions on your behalf in the future.
None of us know when something simple or unexpected will happen and we lose the capacity to make vital decisions in our lives. Sorting out an LPA now, while everything is in order, could be one of the best investments you will ever make.
What is a Lasting Power of Attorney?
There are two types of LPA. One deals with property and affairs and the other with personal welfare. The first type is a document which an individual can execute in order for someone else to act on their behalf in connection with their financial affairs. An LPA is intended to survive any mental incapacity and can continue to be used where an individual is no longer capable of dealing with their finances.
The personal welfare LPA deals with matters relating to care and treatment that may be required and can include considerations relating to life sustaining treatment. An attorney appointed to make decisions for you would be able to act in accordance with guidance you can set out. You can specify what you would choose to happen in certain circumstances, such as the type of medical treatment received. The issues which might have to be canvassed in such a power are profound and it goes without saying that the most detailed and careful consideration must be given to the drafting of such a document.
How can I create a Lasting Power of Attorney?
For both types of LPA there are set forms which must be used. They are available from the website for the Office of the Public Guardian www.publicguardian.gov.uk. The forms must be completed carefully and then signed in the presence of an independent witness. A certificate of capacity must be completed in which it is confirmed that the person making the LPA has the mental capacity to do so. This can only be completed by certain people, but this includes specialist solicitors such as us who have the relevant professional mental health skills to confirm capacity. The intended attorneys must then also sign before an independent witness. Care is needed to comply with the precise rules for an LPA.
Do I need to tell anyone about the Lasting Power of Attorney?
The LPA form provides for someone to be told about the LPA and your intention to register it (see below). This should be someone who knows you well but not someone who is to be appointed as an attorney or a replacement attorney. The requirement is not compulsory and so it may be beneficial to discuss with your legal adviser how and when to use this function.
How do I register the Lasting Power of Attorney and with whom?
Before an LPA can be used, it must be registered with the Office of the Public Guardian. There is a set form to complete and a fee paid. The people who you have chosen to be notified of the application (if any) to register the LPA will have a period of three weeks to raise any objections, after which time the Office of the Public Guardian will validate the LPA and return it to the applicant.
A cautionary note…what happens if I don’t have an LPA?
Without an LPA to deal with your finances, if you became incapable of dealing with your finances, a family member, friend or solicitor would have to apply to the Court of Protection to be appointed as your Deputy. This can be a time consuming and expensive process, in which you are unlikely to have any say as to who is controlling your affairs and during which time no action can be taken to deal with your affairs to, for example, pay bills and meets day to day expenses. Without an LPA to deal with personal welfare matters, decisions may be taken which you may not have otherwise taken yourself or an application to the Court of Protection may be required for the Court to consider your case and decide what is in your best interest