A Lasting Power of Attorney (LPA) is a legal document which allows you to choose people you trust to make decisions on your behalf about your property and financial affairs, or your personal welfare, or both.
An LPA is not just for the elderly. If you are over 18 years old, you should consider making one. If you have investments, shares or property in your sole name, your spouse or civil partner will not have any legal right to access these accounts or property in the event of you being unable to deal with them. They will even encounter difficulties in accessing jointly held bank accounts if one joint owner loses capacity without having a valid LPA in place.
There are two different types of LPA.
This type of LPA can only be used if you lack the capacity to make a particular decision yourself. Your attorney(s) will then be able to make health and welfare decisions for you such as where you live and with whom, the care you receive, access your personal information like medical records, decide what you wear, what you eat and how you spend your day. They will also be able to give and refuse consent to medical treatment in your best interests.
You can choose whether you wish your attorney(s) to make decisions about life-sustaining treatment for you should such treatment be needed to keep you alive. If you confirm that you do not want your attorney(s) to make decisions about life-sustaining treatment, the doctor in charge of your treatment will make the decision in your best interests.
You can restrict the powers of your attorney(s) or you can add instructions or preferences for them to follow. This type of LPA may override any Advance Decision you have in place.
BE AWARE - if a person does not have a health and welfare LPA, decisions can still be made, but no one has authority, which increases the risk of conflict where not everyone agrees with the decisions being made.
This type of LPA can be used before you lack capacity (on your instructions) and after you lack capacity. Your attorney(s) will be able to make most decisions that you can make about your property and finances, such as running bank accounts, buying or selling property, managing investments or carrying on a business and may access your personal information.
You can restrict the powers of your attorney(s) or you can add instructions or preferences for them to follow.
BE AWARE - if a person does not have a Property and Financial Affairs LPA then it is necessary to obtain an order from the Court of Protection for the appointment of a Financial Deputy, which takes time. Until a court order is made, only very limited steps can be taken to secure their financial affairs.
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You can choose more than one attorney if you wish and you can decide whether you would like them to act jointly or jointly and severally, i.e. they can all act together, but they can also act separately if they wish.
You can also choose a replacement attorney(s) in case an attorney is permanently unable or no longer wishes to continue to act for you.
Your attorney(s) are entitled to be reimbursed for out-of-pocket expenses incurred in carrying out their duties. Professional attorneys, such as solicitors or accountants, charge for their services.
Your attorney must be over 18 years old, have mental capacity and be someone that you really trust. An attorney can be your spouse, civil partner, child, parent, sibling, friend, relative, or your solicitor.
Both types of LPA have to be registered with the Office of Public Guardian before they can be used, and you can choose to notify up to five people when an application to register your LPA is made (but you do not have to notify anyone).
This can be important if you want others to know you are putting the documents in place or, if you lack capacity at the time of registration, then you may want to rely on these people to raise any concerns they may have about the application.
For each type of LPA you need a Certificate Provider. This is an independent person who must fill in a Part B Certificate to confirm that, in their opinion, you are making the LPA of your own free will and that you understand its purpose and the powers you are giving your attorney(s). This is an important safeguard and your LPA cannot be registered unless the certificate is completed.
The Certificate Provider can either be someone who has known you personally for at least two years (as more than just an acquaintance) and is not connected to anyone involved in the LPA, or a professional person with relevant qualifications or experience, e.g. a solicitor or a doctor.
Clients sometimes worry that, if they make an LPA, their attorneys will take over altogether and leave them out of control of their own affairs. However, this is fundamentally not the case, and any attorney who did act in this way would be in breach of the strict principles set out in the Mental Capacity Act 2005.
Under this legislation, your attorneys have a responsibility to support you to make your own decisions as long as you are able. They must only decide for you if you are unable to decide for yourself.
In relation to your property and financial affairs, the attorneys you appoint may act on your behalf while you still have capacity, but only to the extent that they are carrying out your own decisions if it is difficult for you to do certain things for yourself. For example, they may deal with organisations on the telephone if you are hard of hearing, sign documents on your behalf if a disability prevents you from doing so personally, or keep your finances running properly during a stay in hospital.
You can choose either one of the above LPAs or you can choose to have both. Cost will be according to your requirements. Contact us today for a quote.
Submit an enquiry and one of our team of experts will be in touch as soon as possible to discuss your needs.
Or call the Lasting Powers of Attorney team on 01522 515971