LASTING POWERS OF ATTORNEY
A Lasting Power of Attorney (LPA) is a legal document which allows you to appoint a person or people who you trust (known as an attorney) to make certain decisions on your behalf should you become incapable in the future.
Benefits of making an LPA
There are a number of reasons you may wish to make an LPA:
It can be reassuring to know that if you are unable to make a decision for yourself in the future, your chosen person (s) will make these decisions for you.
Making an LPA ensures that the person (s) you want to make decisions for you will be able to do so. This prevents a stranger, or someone you may not trust, from having this power.
An LPA can reduce problems that may occur in the future. It can be more expensive and time consuming for family and friends to try and to gain a similar power in the future through the Court of Protection.
Making an LPA can help prompt discussions with your family or others about your future wishes.
Making an LP can be seen as insurance for your future.
There are two different types of LPA: Property and Financial Affairs and Health and Welfare. These are two different and separate documents dealing with different aspects of decision making. You can choose to make one or both.
Property and Financial Affairs LPA
If there comes a time when you can’t manage your finances anymore a Property and Financial Affairs LPA will allow your attorney(s) to deal with this on your behalf. This could include paying your bills, collecting your income or benefits, or selling your house. You can restrict the scope of what your attorney(s) can and cannot do by placing restrictions in the document.
You can also choose to allow your attorney (s) to act as soon as the document is registered rather than just when it has been deemed you no longer have capacity. This is beneficial for example, should you have a stroke, very often sufferers do not lose mental capacity but are physically unable to deal with their affairs, if the LPA was restricted only to be used when you have lost capacity this renders the document useless.
Health and Welfare LPA
This LPA allows the attorney(s) to make decisions in respect of your health and welfare. This includes making decisions about where you live, day to day care including your diet and what you wear. This LPA can only be used when you don’t have the capacity to make decisions about your own welfare.
The Health and Welfare LPA allows you to give instructions to your attorney(s) with regard to accepting or refusing life sustaining treatment. You will be asked whether or not you wish to do this on the form and it will need to be stated clearly.
If I complete the forms now, does it mean I will no longer be able to make decisions for myself?
LPA’s are governed by the Mental Capacity Act 2005 and the attorney(s) you appoint must follow the five principles:Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
Your attorneys must act and make decisions in your best interests when you are unable to make a decision.
Before your attorneys make a decision to act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.
This does not mean that from the moment you complete the forms your attorney(s) take over making decisions for you.
What happens if I don’t make an LPA and I lose capacity?
In this case someone may apply to the Court of Protection to become your Deputy. This can give them similar powers to that of an attorney. A relative or friend can apply to become your Deputy, or a professional may be appointed.
The process is a lot more lengthy, time consuming and expensive. There are also ongoing requirements such as paying an annual fee, submitting an annual report and keeping records of all your finances that are not required had you registered an LPA.
What happens if I fall out with my attorneys?
Like a Will, an LPA can be cancelled at any time, provided you retain capacity.
Can my attorneys change my Will?
No, your attorneys cannot use your LPA to change your Will. The LPA will expire on your death and must be returned to the Office of the Public Guardian (OPG).