LPAs for when you can’t make decisions for yourself

Planning for the future is a wonderful and exciting thing, but this forward thinking can sometimes involve a few tricky issues. This includes the possibility that one day you might be unable to make certain decisions for yourself because of physical or mental incapacity.

A Lasting Power of Attorney (LPA) is a way of planning for this eventuality. By setting up an LPA, you can nominate another party to make important decisions on your behalf so you can have confidence in your wishes being followed even if you one day reach a point when you are no longer able to express them for yourself.

If you would like to discuss taking this important step to safeguard your interests and those of your family, Sally Andrews, Wellers Reece-Jones’ LPA solicitor in Sevenoaks, can assist you.

What can a Lasting Power of Attorney do?

There are two main types of LPA and they cover different aspects of your care and wellbeing:

  • Property and financial affairs LPA: For decisions regarding your finances and property, such as managing a bank or building society account on your behalf, paying bills, collecting pension or benefits, selling your property. Once registered you can give permission for your attorney to start acting on your behalf even before you have lost capacity, if you so wish.
  • Health and welfare LPA: This covers important day-to-day decisions regarding where you live, your daily care, and how you are looked after, as well as medical decisions. This includes the power to refuse or consent to life-saving medical intervention. Once registered the LPA will only be used once you have lost capacity.

It is possible to create an LPA at any time providing you are over 18 and have sufficient mental capacity.

Whatever age you are, it’s important not to underestimate the power of making an LPA; not only can it ensure your peace of mind, but it can also protect your loved ones in the event of any future incapacity so that they won’t have to go to the expense and inconvenience of a Court of Protection application to manage your affairs.

The role of the attorney

When you create an LPA, you become the ‘donor’ and the person you choose to act on your behalf becomes the ‘attorney’. The attorney can be someone close to you or they could be a professional attorney which could be a solicitor. Furthermore, you can appoint the same attorney for both your finance and property LPA and your health and welfare LPA or you can appoint different attorneys for each.

And it may be worth appointing multiple attorneys for both roles just in case one of selected attorneys are later unable to act for you.

Attorneys must:

  • Act in accordance with the statutory principles of the Mental Capacity Act 2005 (MCA).
  • Act in the best interests of the donor (section 4 of the MCA).
  • Encourage the donor to be part of the decision-making process as much as possible.
  • Consider the donor’s past and present feelings.
  • Consult those who know the donor’s feelings and best interests.
  • Not delegate authority, unless specified to do so.
  • Keep records of all important events and decisions.

What happens if there is no LPA in place?

When a person loses mental capacity and there is no valid LPA in place, any person who wishes to look after the person’s affairs must apply to the Court of Protection to become a deputy. Similar to Lasting Power of Attorney, there are two types of deputyship: property and financial affairs deputy and personal welfare deputy.

A deputyship application can take several months to be finalised and there are number of fees involved which can reach up to around £800. As a first time deputy, the Court of Protection will need to supervise the successful applicant and, going forward, the deputy will need to report annually to the Office of the Public Guardian (OPG) declaring the decisions which have been made and why they were made.

We can assist you in making your application to the Court of Protection and can advise you about the ongoing contact you will need to have with the Office of the Public Guardian.

LPAs, a modern reality

According to the OPG, 835,950 powers of attorney were registered in 2018/19 (8.4% more than 2017/18 and 28.9% more than 2016/17).

Despite this encouraging increase in uptake, research from OPG in 2019 reveals that 75% of people incorrectly assume their partners or close family members will be able to make decisions on their behalf in the event they lose capacity; as it stands only 7.9% of the adult population have a power of attorney in place.

Wellers Reece-Jones, LPA solicitors in Kent

Wellers Reece-Jones solicitors serve the whole of Kent from our office in Sevenoaks. If you would like to discuss setting up a lasting power of attorney for health and welfare and/or financial and property affairs, contact us today. Please call Sally Andrews on 01732 446362 or email sally.andrews@wellerslawgroup.com or annelise.tyler@wellerslawgroup.com.

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