You can choose who makes future decisions for you.
Dealing with money and welfare matters in old age or ill health can be difficult and worrying – perhaps even impossible.
Lasting power of attorney is a tool which allows someone, if you are unable, legally to make decisions on your behalf. The decisions can be either financial or health and welfare orientated.
It is very sensible to actively plan for your future and should be done even if you think you are going to be able to make decisions for the rest of your life. Life is very unpredictable and anything could be around the corner so we find its best, if you lack the mental capacity, you have someone in place you trust to make decisions. This can stop unwanted treatment or financial decisions from taking place. LPA’s are just one way to ensure future wishes are met, should you be left unable to do so. They are; advance statement and advance decision. These are useful if you wish to refuse certain treatment or certain types of care.
There are two types of LPA’s. They are Property & Affairs LPA and Health & Welfare LPA. Each one covers totally different areas and both have different application forms. However, you can have the same person doing both. You may also choose to have two different people.
There are two types of Lasting Power of Attorney
Health and Welfare
These LPA’s help you with the everyday decisions on your behalf with regards to your health and welfare. An LPA with these permissions can make decisions on your everyday care, what you eat and even what you wear. They can also decide where you live. Another power you can give your Attorney is whether or not to accept or decline life prolonging treatment. Decisions regarding life have to be stated clearly. These decisions cannot be made until it is registered with the Office of the public guardian and unlike the Property and Affairs LPA they cannot make decisions until you don’t have the mental capacity to do so.
Property and Financial Affairs
These LPA’s will deal with your finances and property. This can include anything from paying bills or collecting benefits. If you wish to limit the powers your LPA’s have you can do so. This LPA cannot be used until it has been registered with the Office of the Public Guardian. When it has been registered it can even be used whilst you have mental capacity yourself.
You can choose to make both types of Lasting Power of Attorney, or just one.
Reasons to consider making someone your Attorney
It’s nice to know that should the worst happen and you no longer have the mental capacity to look after yourself or your assets that you have someone you trust to do it for you.
- Not having someone strange or someone you don’t know take control of your life.
- It’s expensive and can be a long process for someone to apply for the power when it’s too late.
When can I make an LPA
Anyone over the age of 18 and has the mental capacity to do so can make someone their LPA. You should fully understand what you are doing and understand what it means before doings so.
Who can be an Attorney
Anyone you wish can be your LPA as long as they are over 18. However, the person dealing with the Property & Affairs LPA cannot be bankrupt. It must be thought over carefully as you need to trust the person fully with key parts of your life. You can hire professionals to be your Attorneys. This includes, but not limited to, solicitors and accountants. You can also set up substitute LPA’s, these LPA’s would come in to affect if the original LPA’s cant or are no longer willing to act. When naming a professional you must use their personal name not their company name.
Choosing how attorney’s act
If you have more than one attorney, deciding how they act is also important. They can act together or separately. Jointly:
All decisions are made between all attorneys and the documents signed by both. Jointly and Separately:
Can act together or apart, it’s up to the attorneys.
Jointly in some matters/Separately for others:
Acting jointly with regards to some matters and separately with regards to others. For example property sales would require both but the diet could be settled by one.
However, when making decisions on behalf of you the attorney must adhere to the mental capacity act. This covers the following:
- Any actions taken on your behalf must be in your best interest.
- Must consider all your wishes both past and present.
- Must not take advantage to benefit themselves
- All of your money and your attorney’s money should be kept separate.
If the attorney fails anyone of these things the LPA can be cancelled. The matter will also be investigated by the OPG and the Attorney could potentially be prosecuted.
How to apply for an LPA
To appoint an LPA one must fill in a either a paper based or online form. The form itself must be then signed by hand and then sent to the OPG. If any help is needed to complete the form then you should see the help notes with each form. You must also consider what LPA form you will need to complete (Property & Affairs LPA or Health & Welfare LPA). Speak to one of our advisers today on 0800 1223 104. We will ensure all documents have been completed quickly. As part of our promise, if we fail to notice an error before submitting the documents to the OPG then we will cover the Repeat LPA application fee of £55.
When the form is completed you will need signatures from one of the following to clarify that you have the mental capacity to create the LPA:
Doctor, Social Worker or a professional.
- Anyone that has known you for over two years and is not the following: Family Member or someone who will benefit from the LPA.
A witness will also have to watch you sign your LPA alongside each attorney you have elected. This shows that the Attorneys know what they’re duties will be should you not have the mental capacity to act. If you want to notify people when an LPA is registered for you, there is an option on the form to do so.
Registering the forms at the Office of the Public guardian should be then done. You will have to pay for each LPA you register. For example registering both a Health & Welfare LPA and the Property & Affairs LPA you will have to pay twice.
Office of the public guardian
These are the “governing bodies” for LPA’s if you will. They deal with all registrations and complaints with regards to the LPA’s. You can always ring these for help with the forms and ask for application forms. If the OPG thinks that there are valid complaints about the attorney, they can pass the case on to the Court of Protection. These can decide/action the following:
Decisions on whether a person has the mental capacity to act on behalf of themselves.
- Making decisions on financial or welfare matters.
- Assessing if an LPA is valid.
- If attorneys don’t follow duties they can remove their powers.
- They hear objections on registration of LPA’s.
- Question: “I have an EPA (Enduring Power Of Attorney) do I need to get an LPA?” Answer: If the EPA was completed and correctly filed before 1st October 2007 that will still be valid. Make sure to double check when it was filed. It is also important to consider that EPA’s only cover Finances and property decisions. So anyone wanting an attorney for their health and welfare needs to get an LPA.
- Question: “Will I still be able to make decisions for myself now if I complete the forms right away? Answer: No, this is not the case. If you have a health and welfare LPA they are designed to let the attorney take control when you are no longer able. The Property and Affairs LPA’s are different. They differ in a way that you can, whilst able, give the attorney to act on your behalf whilst your still of sound mind. This means both you and your attorney can look after your finances.
- Question: “Do I need legal advice?” Answer: The answer is no. However the LPA is a powerful and legal document so seeking professional advice may be advised. You can read the forms and assess whether you need legal advice from that.
- Question: “If I don’t have an LPA, what happens?” Answer: if you don’t have an LPA then it will make it hard for anyone to take control of certain aspects. You may even end up with someone who you don’t want taking control. If you leave it down to someone taking control, they have to go to the court of protection which can be expensive and time consuming. So it is much easier to appoint an LPA.