No one likes to think of themselves as ageing or losing mental capacity but unfortunately it is an inevitable part of life. Safeguarding your affairs by putting in place someone you know and trust to manage your affairs, when you’re no longer able to do so, is a wise move and why people make a Lasting Power of Attorney (LPA).
We recommend LPAs to many clients for a variety of reasons, and it isn’t always those that are already elderly or have failing health. Accidents and illness can occur any time in one’s lifetime and, unfortunately, you might find you need someone to manage your affairs on your behalf, should the worst happen.
An LPA is a legal document which allows you to ensure one or more people (your attorneys) to be able to make decisions on your behalf should, in the future, you lose the mental capacity to do so yourself.
You can choose anyone as your attorney, they just need to be aged 18 or over and mentally capable of making decisions for themselves.
There are two of types of LPAs. One to cover health and care decisions and the other to cover property and financial affairs.
Whether you chose to set up both types of LPA or just one of the two will depend on your own personal circumstances.
Regardless, to be legally valid, an LPA must be signed by all parties and their signatures witnessed by an independent person. Following signature, the LPA must be registered with the Office of Public Guardian.
Property and Financial affairs LPA
A property and financial affairs LPA covers decisions about your finances and property and can include paying household bills, speaking with companies regarding accounts you hold with them, managing your bank accounts and even the sale of your property should this be necessary.
You can even choose for a property and financial affairs LPA to give your attorneys authority to make decisions on your behalf as soon as it has been registered with the Office of the Public Guardian. An example of how this might be useful is if you end up in hospital for a long period and you need your affairs managing over that time.
If you are a business owner, it is sensible to create a separate property and financial affairs LPA and have different attorneys manage your business affairs, should lose the capacity to make decisions about these matters for yourself.
Health and Care decisions LPA
A Health and Care decisions LPA enables your attorneys to make decisions regarding your day-to-day care and where you should live.
It also allows you to decide whether you would like your attorneys to make decisions on your behalf regarding life-sustaining treatment.
This LPA will only be applicable when you have lost the capacity to make these kinds of decisions yourself and give your attorneys the authority at that point in time, not before.
What happens if I don’t have an LPA in place?
It is important to note that LPAs can only be made whilst you have the mental capacity to understand who you are appointing to manage your affairs.
Unfortunately, without LPAs in place, should you lose capacity to make decisions for yourself, your family or in some cases the local authority, need to make an application to the Court of Protection to be appointed as a Deputy.
These kinds of Court applications can involve a lot of different forms and information to be produced to the Court before they will consider whether an Order should be granted. An application to the Court will take much longer to be granted than the preparation and registration of an LPA; currently this could be over 12 months.
When you make an LPA, you decide who you wish to appoint to make decisions for you whereas when a Court of Protection Order is granted, the person appointed as a Deputy to manage your affairs might not be someone you would’ve appointed yourself. Also the Court of Protection may not grant the Deputy the same powers to manage your affairs as you would have chosen for them which can cause more difficulties in managing your affairs.
One would hope that in setting up LPAs, you will never need to use it, but they can also be a very useful insurance policy if you later lose capacity to make decisions for yourself.
If you would like to discuss preparing Lasting Powers of Attorney, please get I touch with our Private Client team on 01642 356500 or email Head of Private Client and Partner, Helen Milburn on hmilburn@jacksons-law.com.
