Have you considered who would make decisions on your behalf in the event that you were unable to because of loss of physical or mental capacity, either temporarily or in the long term? It is a common mistake to assume that your decision making will automatically pass to your next of kin. However, this is not always the case. We go through exactly what a Lasting Power of Attorney is and how it can protect you and your loved ones.
It is crucial to ensure that the proper legally binding arrangements are put in place prior to loss of capacity so that the people that you trust can act for you in such circumstances. This is achieved by setting up what is known as a Lasting Power of Attorney (LPA).
There are 2 types of LPA:
You can choose to make both types of LPA, or just one. It is also possible for you to name different people to deal with your health and welfare matters to those named to deal with your property and financial affairs, if appropriate.
You can make an LPA provided that:
When making an LPA you are referred to as the ‘Donor’ and the person that you appoint to act on your behalf is referred to as the ‘Attorney’.
You do not need to live in the UK or be a British citizen to make an LPA.
Most people can be named as an Attorney and many choose to name their spouse or other close relatives or friends. In some cases, a professional, such as a solicitor is named.
An Attorney must be aged 18 or over and also have mental capacity.
Your Attorney does not need to live in the UK or be a British citizen.
You can choose one or more people to be your Attorney but if you appoint more than one Attorney, you must decide whether they will be able to make decisions separately or always have to make decisions together. It is also possible to appoint other people to replace your Attorney if at some point they cannot act on your behalf anymore. These are known as ‘Replacement Attorneys’.
A Health & Welfare LPA allows your Attorney to make decisions on your behalf when it comes to day to day matters concerning your personal wellbeing.
The sort of decisions that your Attorney might be making under a Health & Welfare LPA include:
Having a Health & Welfare LPA is particularly important if you would prefer someone who is not your legal next of kin to make these decisions on your behalf as, ordinarily, they are unlikely to be consulted.
A Property & Financial Affairs LPA allows your Attorney to make decisions on your behalf about money and property.
The sort of decisions that your Attorney might be making under a Property & Financial Affairs LPA include:
An LPA can only be used after it has been registered at the Office of the Public Guardian (OPG). The OPG protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves. The OPG is responsible for the registration of LPAs.
Your Attorney under a Health & Welfare LPA can only make personal welfare decisions under a registered LPA when you when you no longer have the capacity to state those views yourself.
In comparison, your Attorney under a Property & Financial Affairs LPA can make decisions on your behalf immediately once the LPA has been registered at the OPG whether you lack capacity or not unless you have restricted when they can act in the LPA.
If you do not sign an LPA whilst you have the mental capacity to do so your family or friends may be forced to make an application to the Court of Protection to be appointed as your Deputy. This is extremely costly and time-consuming. If there are no family members or friends able to make such an application on your behalf, decisions regarding your property, financial affairs and personal welfare may be made by a Court appointed Deputy.
Without an LPA, decisions of a personal and financial nature could be made by a third party who has no or little knowledge of your wishes. This could, for example, result in actions being taken that you may not have wanted.
Having an LPA in place gives you more control over what happens to you if you have an accident, physical ill health or mental illness that makes everyday routines and decision making difficult, stressful and in some cases impossible.
If you are an attorney or deputy appointed under a Lasting Power of Attorney and would like further advice relating to the new guidelines on Gifts, Pinney Talfourd are here to help. We have an experienced and dedicated team of specialist solicitors based in our offices across Essex and London. We have evening and weekend appointments available for clients that find it difficult to arrange meetings during working hours.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.