Losing Capacity – Don’t leave it too late to get an LPA
Most of us will need to consider who will manage our affairs and look after us in our later life or, if and when we lose the ability to do this for ourselves. It may be that we first have to consider this for our ageing parents or a family member.
Most people first experience the need for a Lasting Power of Attorney (LPA) because a friend or relative has lost capacity without making one. If you lose mental capacity and have not made a Lasting Power of Attorney, your relatives, friends or even the local authority, can apply to the Court of Protection to be able to make decisions on your behalf as a “Deputy”. You should bear in mind that once mental capacity for decision making has been lost there is no option but to apply to the Court of Protection, which will normally be a time-consuming and expensive process, often lasting in excess of six months and during which time assets may be effectively frozen.
Generally, the Court of Protection do not appoint deputies to make decisions about your health and welfare – instead preferring to deal with issues on a decision by decision basis.
Loss of capacity is not, unfortunately, something that is limited to old age. We therefore recommend all our clients prepare both types of Lasting Power of Attorney before they are needed.
What is an LPA?
An LPA is a legal document that enables you (the Donor) to choose people (Attorneys) to make decisions on your behalf, about such things as your finances, property and your personal welfare, at a time in the future if you become physically or mentally incapable of dealing with those affairs yourself.
Anyone over the age of 18 can set up an LPA providing they have the mental capacity to understand the meaning and the effects of it. There are two types of Lasting Power:
- Property & Financial Affairs (e.g. dealing with the sale of your house and paying bills and making investments on your behalf); and
- Health & Welfare (e.g. deciding which care home you go to or where you live and medical treatment)
Appointing attorneys
You can appoint as many attorneys as you wish.
You need to consider, however, how you want them to act in practice. There are different options for this such as ‘jointly’ (doing everything together) or ‘jointly and severally’ (acting either together or separately) or a mixture of the two.
You can appoint different people for the different types of LPA based on their ability to carry out their duties. You can give attorneys as much power as you like (they do by default have the same powers as the donor). You can also place conditions and restrictions on their power.
Replacement Attorneys, who would step in if your first appointed attorneys could no longer act, can also be appointed.
The Property & Financial Affairs LPA can be used as soon as it is registered (the court registration fee is £82 per LPA, though this is reduced if your income is below £12k per annum or if you are in receipt of certain benefits). This can be useful from a practical point of view, if for example, you still have mental capacity but have had an accident and wish others to do things for you.
Whilst you have mental capacity, your attorney must follow your instructions when making any decisions with you/on your behalf.
Health & Welfare attorneys will only be able to make decisions for you once you are unable to make those decisions for yourself (case specific).
What if I have an Enduring Power of Attorney?
Enduring Powers, since October 2007, cannot be created anymore. If your Enduring Power of Attorney was made correctly, signed and witnessed before October 2007 it should still be valid. Even if they are valid, however, there are likely to be issues with them and they should be reviewed.
In particular:
- Enduring Powers do not cover health and welfare decisions – they are limited to decisions over property and finance.
- Much of what is covered now when Lasting Powers are prepared professionally was not considered when Enduring Powers were made.
- Enduring Powers have less safeguarding than LPAs as there is no requirement to register them until the Donor loses capacity. This may appear to be a benefit, but registration takes time and during that time the document can often not be used easily.
Why should I seek professional help?
Whilst you can prepare LPAs yourself, seeking professional legal help is the only way to ensure you receive the individual advice needed to complete the LPAs properly.
Preparing the forms correctly is only one aspect of putting effective LPAs in place for the future. Without individual advice and support it is likely only your family will find out if the LPAs have been well done.
All our service options include:
- Reviewing your surrounding circumstances and what you wish to do (i.e. who you wish to appoint and why).
- Advising on the options available both in terms of who to appoint and how this will work in practice.
- Advising on the authorities, conditions, and restrictions you should include (and those you should not) and discussing alternate options with you to achieve your wishes.
- Providing practical advice on issues you are likely not to have considered yourself.
- Confirming the advice provided in writing by way of a written report.
The different service options are:
- Advice only: you prepare the documents (we will provide you with a link to do this) and we review them and provide advice. You can then finalise the forms knowing they have been checked over and the advice you need has been provided; or
- Advice & preparation: we provide advice and prepare the forms to include acting as your Certificate Provider (an independent person who confirms you know what you are doing, no one is forcing you to complete the forms and there is no reason for you not to prepare them) and you then finalise the documents; or
- Advice, preparation & registration: this is a full service in which we do the work for you, on your instructions, through to registration of the LPAs.
The Team here at Wellers will ensure that you receive the advice you need to put the appropriate documents in place to suit your personal circumstances. Get in touch today to start your LPA. For our London office please call 020 7481 2422 , for Bromley the number is 020 8464 4242 and for Surrey call 01372 750100.
Contact us by email: enquiries@wellerslawgroup.com