A Lasting Power of Attorney (LPA) is a legal document which allows you to appoint someone to help make decisions for you, if you are unable to make decisions for yourself. The person or people you appoint are known as attorneys. You can appoint as many attorneys as you consider appropriate and you can also include replacements in case your chosen attorney is unable to act on your behalf.
The inability to manage your own affairs or make decisions may occur gradually over a period of time or may arise unexpectedly, which is why an LPA should be considered by everyone over the age of 18, not just the elderly.
All decisions made by your attorney must be in your best interests.
An LPA must be registered with the Office of the Public Guardian before it can be used by your attorneys. Even once your LPA has been registered, you can continue to deal with your own affairs without any assistance from your attorneys for as long as you are able.
As and when you do require assistance, your attorneys must take all possible steps to help you make as many of your own decisions as you can.
Your attorneys must act in your best interests and have a duty to keep you informed as much as possible about what they are doing. Your attorneys must act in accordance with the Mental Capacity Act 2005.
Your attorneys must assume that you can make your own decisions unless they establish that you cannot do so and they cannot treat you as being unable to make a decision simply because the decision is unwise or they do not agree with it.
Unless you apply restrictions to your LPA, your attorneys will have the same powers as you do over your home, money and investments under a Property and Financial Affairs LPA or your healthcare, medical treatment and where you live under a Health and Welfare LPA. It is important that you carefully choose attorneys who you trust, however, there are also safeguards included within the LPA itself and the LPA registration process to protect you:
• The LPA must be registered with the OPG before it can be used
• You, your attorneys and any other person you have named in your LPA will be notified of its registration and given the opportunity to object if it is felt to be inappropriate
• The attorneys must follow the Code of Practice which provides guidance on the Mental Capacity Act 2005. In particular, the Code confirms that the attorneys must always act in your best interests
• You can include restrictions and conditions in the LPA (for example that the attorneys must keep and submit accounts to a family member or a professional, such as a solicitor, on an annual basis, or that it can only be used in specific circumstances)
• The attorneys have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or the Court of Protection on request.
A Property and Financial Affairs LPA allows your attorneys to deal with and make decisions about your finances and your home. For example, operating bank and building society accounts, paying your bills, collecting benefits, and selling your home. When making an LPA you are able to include conditions and restrictions to limit your attorneys’ authority. This type of LPA does not allow your attorneys to make decisions about your personal welfare.
The LPA can be used as soon as it is registered with the Office of the Public Guardian. This means that your attorneys can manage your property and financial affairs both when you have mental capacity as well as when you do not (unless you include a restriction). Browell Smith & Co can assist you in registering the LPA and provide your attorneys with advice on their duties and responsibilities.
By appointing attorneys you are able to choose who will make decisions about your finances if you are unable to do so. An LPA enables you to plan for the future and ensures only those you trust will make decisions for you and handle your affairs.
If you require assistance in the future as a result of physical or mental incapacity, already having an LPA in place will minimise the disruption to your financial affairs because the attorneys you have chosen will immediately have the power to make decisions and manage your finances for you. This may be convenient for a number of different reasons including, for example, if you are unable to get to the bank or building society, you are in hospital, or you spend significant periods of time out of the country.
If you lose mental capacity, your family do not automatically have the right to manage your affairs. Without an LPA in place a deputy would have to be appointed in the Court of Protection, which can be an expensive and lengthy process (typically several months). Bank accounts and other assets would be frozen until the court approves the appointment of a deputy, meaning that no one, not even your spouse or close family members, could gain access to your money on your behalf.
The advantage of making an LPA is that you are able to choose who will make decisions for you in advance. If you lose mental capacity without an LPA in place, the person appointed by the Court of Protection as deputy to manage your affairs may not be the person you would have chosen.
A Health & Welfare LPA can only be used by your attorneys if you are unable to communicate the decision yourself, for example, if you are ill, unconscious or because of a degenerative condition such as dementia.
A Health and Welfare LPA allows your attorneys to make decisions on your behalf about your personal welfare. It does not allow your attorneys to make decisions about your property and financial affairs.
The LPA covers decisions about your daily life such as your diet, dress and daily routine, what medical treatment you receive and where you live (a Property and Financial Affairs LPA would be required to sell your home).
Putting a Health and Welfare LPA in place enables you to plan for a time when you may be unable to communicate your wishes. It can help you maintain some control during your incapacity by providing instructions or guidance on how your attorneys would make decisions for you. As with the Property and Affairs LPA, a Health and Welfare LPA can include restrictions and conditions to limit your attorneys’ authority.
You can authorise your attorneys to make decisions on your behalf about life sustaining treatment or direct that they cannot make decisions about life sustaining treatment.
Including restrictions or conditions in the LPA allows you to maintain control over certain decisions made for you in the future, even if you do not have the capacity or ability to provide instructions yourself. All restrictions and conditions included in the LPA are legally binding and must be followed by your attorneys.
You can therefore be confident that by including restrictions and conditions in the LPA your wishes will be carried out. For example, if the LPA states that your attorneys must not agree to certain types of treatment which you do not wish to receive, this will ensure that you do not receive that treatment; or you may wish to specify that certain professionals must be consulted when a particular decision needs to be made.
Including restrictions and conditions in this type of LPA will provide you with the peace of mind that if you become unable to make decisions for yourself in the future your wishes and beliefs will be followed.
You can also include guidance in the LPA which, although not legally binding on your attorneys, will express your views on particular matters and may assist them in making decisions in line with what you would have wanted if you were still able to make decisions for yourself.
Examples of this include; your views on certain medical treatments, where you would prefer to live and the type of care you would like to receive.
It is worth bearing in mind that restrictions, conditions and guidance may hamper your attorneys and therefore it is important to think carefully about what you want to include.
If you decide an LPA is not for you, there are other options available to express your wishes.
Other ways of expressing your preferences about future medical treatment include preparing a statement of your wishes, or an advance decision or directive. Please call us to discuss the options available.
Reviewing your personal affairs is an excellent time to put a Lasting Power of Attorney (LPA) in place. An LPA is a document which enables you to appoint people you trust to look after you in the future if you are unable to do so yourself. There are two forms of LPA: Property & Affairs, and Health & Welfare.
A Property & Affairs LPA enables you to appoint someone you trust to manage your financial affairs if you become unable to do so yourself. Your attorney under this power will be able to operate your bank accounts, pay your bills and invest your assets for you. They will also be able to sell your house, which may be needed to pay for care home fees.
The Health & Welfare LPA allows you to appoint someone you trust to make social and medical decisions on your behalf if you become incapable, and also the power to arrange residential care for you if this becomes necessary. This type of LPA is similar to a ‘living Will’, in that the LPA can record your wishes so that your attorney can make decisions for you in accordance with those wishes.
You can make each kind of LPA independently of the other or you can make both.
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