What is a Lasting Power of Attorney (LPA)?
LPA’s are legal documents that allow a person called ‘The Donor’, to appoint someone they know and trust, called ‘The Attorney’, to make decisions on their behalf should they lose capacity and are no longer be able to make decisions for themselves. All decisions need to be made in the best interests of the Donor.
For the LPA(s) to become active, they must be registered with the Office of Public Guardian (OPG). There is no time limit for the registration of the LPA(s) but the sooner it is registered the better. You cannot rectify mistakes after you lose capacity. A registration fee will be payable for each LPA, and an LPA can be made by anyone over the age of 18 – they must have mental capacity at the point of registration.
There are two types of LPA in England & Wales:
- Health & Welfare
- Property & Financial Affairs
Why should you make an LPA?
Have you considered what would happen if you were incapable of making your own decisions due to a serious accident or ill health? Would your family be able to access bank accounts and investments held in your name? Would you want people you don’t know or trust to make important decisions such as where you should live and what health care you should receive?
Consider it now? – What does it look like?
What type of scenario are they used for?
Health & Welfare – can only be used when you have lost mental capacity.
- Decisions on day-to-day care.
- Where you should live.
- What to wear.
- Health Treatment.
Property & Financial Affairs – can be used prior to losing mental capacity with your consent and with instructions on what the Attorney can do.
- Paying your bills.
- Selling your house.
- Collecting income.
- Dealing with your bank accounts.
How can my Attorney(s) make decisions?
You can have more than one Attorney, but you must decide how they should act on your behalf, for example:
- Jointly – Every decision needs to be made jointly and all Attorney(s) will need to sign all documents.
- Jointly and severally – All decisions can either be made jointly or severally by your Attorney(s).
- Jointly in respect of some matters and severally in respect of others – You would make it clear in your instruction how you would wish this to work.
- Can the Attorneys all work together – would there be any conflict where decisions might be delayed or not agreed?
- What happens if an Attorney cannot be contacted or becomes incapacitated?
What is a Certificate Provider?
This is an impartial person over the age of 18 years who confirms that the Donor understands what they are doing and that there has been no undue influence brought to bear. They must confirm that:
- the Donor understands the significance of the LPA.
- the Donor has not been put under pressure to make it.
- the Donor has not been subject to fraud in making the LPA.
- there are no other reasons for concern.
What happens if you lose capacity and don’t have an LPA in place?
Your family will need to apply to the Court of Protection, who will determine whether you have mental capacity to decide.
They can make an order relating to your Health & Welfare and Property and Financial Affairs.
The Courts can appoint a deputy to make those decisions on your behalf. Someone you know can apply to become a Deputy, but the court will decide whether the person is suitable for the role and whether there is a requirement.
All of this will take time, incur a great cost and is likely to leave your loved ones with little or no access to money or decision-making capabilities, just at a time when they are likely to be under significant stress and emotional turmoil.
At Serenity, we regularly review whether you have an LPA in place at your annual Forward Planning Meetings, and if not, how we can assist you in setting one up. If you’re looking at getting an LPA done, do get in contact with you Financial Planner for assistance.