Lasting Power of Attorney – The need to know information

What is an LPA?

Whilst a Will is a document that deals with your assets and allows your executors to handle your affairs after you’ve gone, a Lasting Power of Attorney (LPA) provides powers whilst you’re living.

An LPA is a document which gives powers to your attorney(s) to make decisions for you if you’re unable to make them yourself. There are two types of LPA. One that governs your property and financial affairs and another which deals with your health and welfare.

There is no obligation to create both and according to the Office of the Public Guardian (OPG) more Property and Financial LPAs are registered. However, each has its separate and important functions.

Why make an LPA?

The possibility of losing mental capacity can be a distressing thought and is often seen as something that does not need to be considered until the future. However, it needs to be arranged whilst still having capacity and is best made sooner rather than later.

Who should I choose as my attorneys?

Your attorneys should be someone you trust and professionals can be appointed if needed. These people have a duty to act in your best interest. If you believe someone is not acting in the best interest of the donor then you should contact the OPG and they will investigate.

The documents provide no powers after you’ve died and cannot be used during your life unless they’ve been registered.

When will I need an LPA?

There could be a number of reasons in which you need an LPA:

• If you’re the sole earner in your household and you lost capacity without an LPA, your family may be unable to pay bills without going through the Court of Protection. This can be an expensive and stressful time for your family.
• If you suffer from dementia and may lose capacity, you may not be able to make decisions for yourself. Under these circumstances an LPA would allow you to give power to someone you trust to make decisions for you.
• If you are a business owner you may wish to appoint attorneys under your Property and Financial LPA who will be able to make important decision about the continuity of your business in the event of you losing capacity.

Don’t assume that your spouse or partner will automatically be given the right to make these decisions for you.

Capacity and an attorney’s responsibilities

Capacity could potentially be lost at any time, such as through an accident, a stroke, or a degenerative condition such as Alzheimer’s and with growing reports of 18-45 year olds suffering from mental health problems it can happen to people of any age. If capacity is lost and there is no LPA in place, any family or friends will have to apply to the Court of Protection for a Deputyship to make decisions on the donor’s behalf.

How do you know if someone has capacity?

The Mental Capacity Act is the piece of legislation that governs this. To have capacity a person must be able to:

• understand the information that is relevant to the decision they want to make
• retain the information long enough to be able to make the decision
• weigh up the information available to make the decision
• communicate their decision by any possible means, including talking, using sign language, or through simple muscle movements such as blinking an eye or squeezing a hand

The Mental Capacity Act

The Mental Capacity Act (MCA) is based on five key principles:

1. Every adult has the right to make decisions for themselves. It must be assumed that they are able to make their own decisions, unless it has been shown otherwise.
2. Every adult has the right to be supported to make their own decisions. All reasonable help and support should be given to assist a person to make their own decisions and communicate those decisions, before it can be assumed that they have lost capacity.
3. Every adult has the right to make decisions that may appear to be unwise or strange to others.
4. If a person lacks capacity, any decisions taken on their behalf must be in their best interests.
5. If a person lacks capacity, any decisions taken on their behalf must be the option least restrictive to their rights and freedoms.

The Court of Protection (Deputyships)

Deputyship is granted by the Court of Protection under circumstances where no LPA is in place and where an application has been made following the loss of capacity. This can be a lengthy process, costs more than registering an LPA and will incur ongoing costs which an LPA would not. It can never be certain that the Court of Protection will approve an application and they are particularly reluctant to approve a deputyship for a person’s health and welfare

Responsibilities of an attorney

A Property and Financial LPA can be registered whilst you still have capacity, but the Health and Welfare can only be used once you have lost capacity. You can restrict the rights you give your attorneys under a Property and Financial LPA and they should be someone you trust as they may be responsible for investing your money, paying your bills, arranging the purchase or sale of property etc. They would be expected to keep records on what they spend etc and should keep your money separate from their own.

How much does it cost?

There may be costs to have the documents drawn up (ready for registration). This would be payable to your Will Writer or solicitor. In addition, there will be registration costs payable to the OPG when you submit the documents for registration. Ordinarily this will be £82. If you are on a low income or on benefits, then you may be eligible for remission of these fees. There will be an additional form necessary if you’re apply for reduced fees.

How long does it take?

Once the forms have been submitted then they will be registered. This can take time, so you should allow up to 16 weeks.

As with Writing your Will, there is no obligation to use a solicitor or Will Writer, however if there are any issues with the forms, then it could be rejected, and the registration fee will have to be paid again on resubmission. It is therefore advisable to get expert support and advice.

Remember

If you hold joint accounts with someone and lose capacity the bank can and will freeze the account until they see an attorney or deputy has been appointed.

Once you’ve lost capacity, it’s too late. Get an LPA before it’s too late.

Footnote: Being that it is Christmas you may wish to know a little more about making gifts under an LPA. The SWW’s technical adviser, Siobhan Rattigan has written an article on the subject.

If you have any questions then please speak to an SWW member or contact the Society of Will Writers on 01522 68 78 88.