Recent research by Alzheimer’s Research UK warns that one in three babies born this year is likely to develop the condition at some point in their life. Dementia is an issue that more and more of us will have to deal with – because we suffer from it, or our loved ones do. While this is indeed a sobering thought, there is a legal document called a Lasting Power of Attorney (LPA) that can hugely help in such a situation.
An LPA is a legal document that allows a person (let’s assume it’s you) to appoint one or more people to make decisions and/or act on your behalf (your attorneys). Attorneys can act for you at a time when you are incapacitated by illness or have had an accident, when you are suffering a loss of mental capacity or even if you are just out of the country.
LPAs were introduced in October 2007. The Property & Financial Affairs LPA replaced what was previously known as an Enduring Power of Attorney (EPA). An EPA made prior to October 2007 remains valid and can still be used but no new EPAs can be created.
There are two types of LPA - Property & Financial Affairs and Health & Welfare.
Property & Financial Affairs
Your attorneys will have the power to manage your financial affairs, including the ability to spend your money on your behalf, make investment decisions and sell your home.
Health & Welfare
Your attorneys will have the authority to make decisions about your day-to-day life, including your healthcare, daily routine, where you live and who visits you. Your attorneys will also be able to access personal information about you from doctors and social workers.
Why It’s Important To Complete an LPA
If you fail to make an LPA and lose mental capacity, the Court of Protection has the power to appoint someone to manage your financial affairs and make decisions about your health and welfare. This is a costly and time consuming process and the Court may appoint someone that you not want to make those decisions for you.
An LPA is insurance for the future to cover unknown future situations where your attorneys may need to assist you.
Who can make an LPA?
You can make an LPA as long as you are over the age of 18 and have the mental capacity to do so.
When can Attorneys Act?
LPAs need to be registered with the Office of the Public Guardian before they can be used. In the case of a Property & Financial Affairs LPA you choose whether the document can be used in any situation or only if a doctor has certified to say you have lost capacity.
Your attorneys can only use a Health & Welfare LPA if you have lost mental capacity.
Things to Consider before Making an LPA
You can appoint anyone who is over the age of 18 and is not bankrupt to be your attorney. Your attorney should be someone that you completely trust to always act in your best interests. You can appoint up to a maximum of four attorneys. They can be your spouse, children, close relatives, friends or professionals. A solicitor at Cozens-Hardy LLP can act as an attorney but we would charge a fee for this service.
If you choose to appoint more than one attorney you must decide whether they are all to act together (jointly) or whether you want to allow them to act independently of one another (jointly and severally).
You must specify if you require different attorneys to be responsible for different aspects of your affairs. In other words you can decide if you want to restrict your attorneys’ powers in any way. These restrictions will be legally binding on your attorneys.
If you wish, you may appoint successors to your attorneys in the event that one or more of them cannot act for you.
If you are granting a Health & Welfare LPA you must decide whether you want to give your attorneys the authority to refuse life-sustaining treatment on your behalf.
Your attorneys will be under a duty to follow the principles laid down in the Mental Capacity Act 2005. They must:
- Help you to make your own decisions wherever possible
- Assume you can make your own decisions unless it has been established that you cannot do so
- Act in your best interest at all times
What if I no longer want an LPA or want to change my attorneys?
You can cancel your LPA at any time provided you have the mental capacity to do so.
If you wish to change your attorneys then you would need to make a new LPA.