A Lasting Power of Attorney (LPA) allows you to plan ahead by appointing someone you trust to make decisions on your behalf.
Dealing with mental incapacity, whether affecting you or a family member, can cause worry. If arrangements have not been made to appoint someone to look after you should you lose mental capacity in the future, it can also become very costly and time consuming to deal with. Therefore, you may wish to consider creating a Lasting Power of Attorney, which allows you to appoint somebody you trust – known as an attorney – to make key decisions regarding your property, money, health and care in the future.
A Lasting Power of Attorney should be created by you – the donor – whilst you have capacity to do so and it will then be valid for use by your attorneys in the future, should you lost capacity to make decisions yourself.
There are two types of Lasting Power of Attorney, also known as an LPA:
(1) Property and Financial Affairs LPA
You can appoint one or more attorneys to manage your finances or sell your property on your behalf. A Property and Financial Affairs LPA may be used by your attorneys only when you lack capacity, or even whilst you are still able to make financial decisions, but would prefer your attorney sign paperwork or otherwise put your decisions into effect for you. This might be easier for lots of reasons: you might find it difficult to get about or to talk on the telephone, for example.
You can decide to give your Attorney(s) the power to make decisions about any or all of your property and financial affairs matters. This could include paying your bills, collecting your benefits or selling your house. We recommend you speak to one of our solicitors, who can advise you in-depth with respect to your options to ensure you are well prepared and protected for the future.
(2) Health and Welfare LPA
A Health and Welfare LPA allows you to appoint one or more Attorneys to make decisions about your personal welfare matters, including healthcare matters.
The LPA can only be used if you lack the capacity to make these decisions yourself, for example, if you are unconscious or because of the onset of a condition such as dementia.
This could involve some significant decisions, such as:
- Giving or refusing consent to particular types of health care, including giving or refusing consent to life-sustaining treatment.
- In the event that you require care, whether you continue to live in your own home, perhaps with help and support from social services, or whether residential care would be more appropriate for you.
Your Attorney(s) will also have the power to make decisions about day-to-day aspects of your personal welfare, such as your diet, your dress and your daily routine. We will advise you fully about how best to set out your wishes in your Health and Welfare LPA to ensure your requirements are properly detailed.
When considering whether you should create Lasting Powers of Attorney, please bear in mind that it can only be made whilst you are capable of understanding such a document. Sadly, we are often approached by relatives of a family member who has an advanced condition, such as dementia, which has rendered them unable to make key decisions already and thus unable to create and LPA. In these circumstances, relatives must make an application to the Court of Protection for a Deputyship Order instead, which is an expensive and time consuming process, and can be stressful for family members who are trying to look after somebody they care about, but are unable to because they cannot access the funds they need to support that person. For example, your property may need to be sold to pay care fees.
Preparing your Lasting Powers of Attorney
We will make an appointment for you to see one of our solicitors to discuss your Lasting Powers of Attorney in detail, before preparing a draft document for you to review. We will then organise for your Lasting Powers of Attorney to be signed, usually at our offices, as this ensures they are signed in the correct order and allows us to act as a witness to your signature. We will also arrange for your attorneys to sign and provide them with key information about the responsibilities involved in being an attorney and how to properly carry out the role.
We will also usually act as your ‘certificate provider’. A certificate provider is somebody able to confirm you have the capacity to create a Lasting Power of Attorney and can be a solicitor or doctor acting in a professional capacity, or a friend, if they satisfy certain conditions.
Registering your Lasting Powers of Attorney
Once you, your certificate provider and your attorneys have signed the Lasting Powers of Attorney, they can be registered ready for your use and we will organise this for you.
Your Lasting Powers of Attorney will be sent to the Office of the Public Guardian (OPG) for registration. Upon receipt, the OPG will contact you and your attorneys to advise that an application has been made for them to be registered and a waiting period of four weeks will begin. This waiting period is a safeguarding measure, designed to ensure Lasting Powers of Attorney are not being misused.
Once the waiting period has passed, the OPG will send the registered Lasting Powers of Attorney to us and these will then be available to use by your attorneys, should this be necessary in the future.
We can store your Lasting Powers of Attorney in our safe custody free of charge.
Enduring Powers of Attorney
If you already have a valid Enduring Power of Attorney, made prior to 1st October 2007, this will continue to be valid, but only in respect of your property and financial affairs. If you would like to appoint an attorney to make decisions about your health and welfare, you should contact us to for an appointment to discuss the Health and Welfare Lasting Power of Attorney.
For further advice or information, please contact us or ask for one of our free information leaflets.
Please contact Peter Tanner by email at PeterT@carpenterssolicitors.co.uk or by telephone on 020 8669 5145 for further information.
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