A Lasting Power of Attorney (LPA) is an important legal document that protects you in the future. It allows you to appoint another person, or other people, to make decisions for you, should there be a time when you are unable, or unwilling, to take those decisions for yourself.
There are two main types of LPA – both act as a form of insurance policy to protect you and your family in certain areas of life. Some may consider them a morbid concept, but an LPA is on equal footing with a Will when it comes to future-proofing your affairs and should be on everyone’s radar when it comes to estate planning.
Here, our specialist Lasting Powers of Attorney Solicitors answer some common questions about LPAs.
What is an LPA?
An LPA is a legal document that allows you to appoint an individual (known as an attorney) or individuals (attorneys) to make certain decisions for you if you cannot make those decisions for yourself.
The key word here is ‘if’. An LPA only comes into effect if and when you need it to. Once you have made an LPA, nothing will change until there comes a time when you need to use it.
The two main types of LPA are:
- Property and financial affairs. This deals with decisions relating to finances and property, such as selling your house, paying your bills, accessing your bank accounts and collecting benefits.
- Health and welfare. Making a health and welfare LPA allows an attorney to decide about your medical care, daily routine, and any life-saving or life-sustaining treatment.
You can choose to make one or to make both.
A health and welfare attorney can only make decisions on your behalf when you lose capacity. However, you can agree to a property and financial affairs attorney making decisions for you as soon as it is registered if that is what you want.
What is capacity?
Mental capacity is the ability to make decisions at the time they need to be made. This means that you can:
- Understand the information required to make a decision.
- Retain the information for as long as you need to make a decision.
- Weigh up the necessary information to reach a decision.
- Communicate this decision to others.
- Understand the consequences of any given decision.
Under the Mental Capacity Act 2005, it is presumed that you have capacity until it is proven that you have not.
People can lose mental capacity for various reasons, including through dementia, a learning disability or a brain injury.
When should I get an LPA?
Now! Anyone over the age of 18 and with mental capacity can, and should, make one. You might not need it anytime soon, and maybe won’t use it at all, but making one will give you the protection and peace of mind you need.
How do I get an LPA?
You need to complete a specific form to make an LPA, which must then be registered with the Office of the Public Guardian (OPG).
You need to include certain information on the form, including the name(s) of who you are authorising to act as your attorney(s), details of what decisions you give them the authority to make, and the names of any people you would like to be notified when the LPA is registered with the OPG.
The forms also need to be signed and witnessed, and you need to get someone to sign your certificate of capacity, confirming that you understand the LPA and nobody is forcing you to make it.
The forms can be complex, and it is advisable to ask a solicitor to help. Applications are rejected for various reasons, and an experienced solicitor will be able to ensure they are completed correctly and reduce the likelihood of any delays.
What happens if I don’t have an LPA?
If you lose mental capacity without an LPA in place, your loved ones do not automatically have the power to manage your affairs – not even your spouse. This can cause additional problems and added stress for families already going through a difficult time.
Instead, a family member would have to apply to the Court of Protection to be appointed as your ‘deputy’ to be able to make decisions on your behalf. Applying to the Court of Protection can be a costly and time-consuming process, and you don’t get a say in who the Court will appoint.
It is much better to put an LPA in place while you can.
Solicitor LPA Service
At Langley Wellington, our specialist private client team has extensive experience in drawing up LPAs and can guide you through the process. We can also deal with the registration of LPAs with the OPG for either donors or attorneys.
To find out more about LPAs and how we can help, please click here.
Alternatively, you can fill in this contact form.
This blog is not intended to be taken as advice or acted upon. If you are seeking legal advice, please get in touch with our team of solicitors.