So, what is a Lasting Power of Attorney?? As mental capacity solicitors, I get asked this a lot. But I don’t want to lose control, I want to decide….is how the conversation goes. So let’s look at what a Lasting Power of Attorney Document is:-
What is a lasting power of attorney?
A Lasting Power of Attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.
So far so good, you are appointing people to look after you. But, hang on a minute, does that mean they take control?? Well, yes, and, no. They only take over control if you can no longer make the decisions yourself. i.e you lack capacity.
What types of Lasting Power of Attorney is there:-
There are 2 types of LPA:
- property and financial affairs
- health and welfare
You can choose to make one type or both.
Property and financial affairs lasting power of attorney
Use this Lasting Power of Attorney to give an attorney the power to make decisions about money and property for you, for example:
- managing a bank or building society account
- paying bills
- collecting benefits or a pension
- selling your home
It can be used as soon as it’s registered, with your permission. So it does what it says on the tin. The nominated people (attorneys) can help make any of the above decisions.
Health and welfare lasting power of attorney
Use this LPA to give an attorney the power to make decisions about things like:
- your daily routine, eg washing, dressing, eating
- medical care
- moving into a care home
- life-sustaining treatment
It can only be used when you’re unable to make your own decisions.
Register a lasting power of attorney
In order to use your Lasting Power of Attorney it must be registered with the Office of the Public Guardian (OPG). Your attorney can also register it for you.
It takes between 8 and 10 weeks to register an LPA if there are no mistakes in the application.
However, please note, it is vitally important you at least have these documents prepared, but you do not have to immediately register them.
So why wouldn’t you register them? Well, just to save costs. There is a fee of £82 to register each Lasting Power of Attorney unless you get a reduction or exemption. You may not have to pay the fees if you’re on means-tested benefits or a low income.
I don’t want to lose control?
You don’t! You are in total control, under the principles of the Mental Capacity Act 2005 your attorneys must follow these rules:-
- They must assume that the Donor can make their own decisions unless they establish that the Donor cannot do so;
- They must help to make as many of the Donor’s own decisions as they can. They cannot treat a Donor as unable to make the decision in question unless all practicable steps to help the Donor to do so have been made without success;
- They must not treat a Donor as unable to make the decision in question simply because the Donor makes an unwise decision;
- They must make decisions and act in the Donor’s best interests when the Donor is unable to make the decision in question;
- 5. Before the attorneys make the decision in question or act, they must consider whether they can make the decision or act in a way that is less restrictive of the Donor’s rights and freedom but still achieves the purpose.
I want to decide what happens to me?
Again, see above, you will always be in control of what happens to you. Unless you lack capacity, you will decide.
Who decides when I have lost capacity?
This is decided by those around you, normally a doctor would be involved as it is likely to be quite clear you are struggling to understand certain aspects.
I don’t know who should be my attorney?
I always get asked, who should my attorney be? Well, first and foremost, it must be someone you completely trust, if you are looking to put a restriction on how they act or what decisions they make I think you need to reconsider the entirely. Make sure it’s someone you could happily chat over your personal finances with.
I don’t need it now, I will get it when I need it?
I hear this one daily. It’s too late! You need one now, whilst you are fully fit, healthy and capable of making one. If you get to a stage where you feel you need one, chances are it’s too late for one to be drawn up. Sadly, this can lead to a lengthy, costly and frustrating process for your loved ones.
Who can be your attorney
Your attorney can be anyone 18 or over, such as:
- a relative
- a friend
- a professional, eg a solicitor
- your husband, wife or partner
You must appoint someone who has the mental capacity to make their own decisions.
When choosing an attorney, think about:
- how well they look after their own affairs, eg their finances
- how well you know them
- if you trust them to make decisions in your best interests
- how happy they will be to make decisions for you
You can’t choose someone who is subject to a Debt Relief Order or is bankrupt if you’re making a lasting power of attorney (LPA) for property and financial affairs.
If there’s more than one attorney
If you’re appointing more than one person, you must decide if they’ll make decisions:
- separately or together – sometimes called ‘jointly and severally’ – which means attorneys can make decisions on their own or with other attorneys
- together – sometimes called ‘jointly’ – which means all the attorneys have to agree on the decision
You can also choose to let them make some decisions ‘jointly’, and others ‘jointly and severally’.
Attorneys who are appointed jointly must all agree or they can’t make the decision.
When you make your LPA you can nominate other people to replace your attorney or attorneys if at some point they can’t act on your behalf anymore.
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