What is a Lasting Power of Attorney and Do You Need One?

What is a Lasting Power of Attorney and Do You Need One?

4 Apr 2020

What is a Lasting Power of Attorney?

 

A Lasting Power of Attorney (LPA) is a legal document that lets you (the Donor) appoint people of your choice and give legal authority to one or more people (known as Attorneys) to make decisions on your behalf.

 

Who should make an LPA?

 

Everybody over 18 should consider preparing LPAs, not just the elderly. It is a common misconception that LPAs are only relevant to those over a certain age.  

 

Charity Age UK says: “There’s no specific age when you should consider making an LPA. Young people can lose capacity through accidents. But if someone is diagnosed with a condition likely to cause loss of capacity, they may be well advised to think about who they want to make decisions for them when they can no longer do so.

 

When should you prepare an LPA?

 

You can only enter into an LPA whilst you are of sound mind and are capable of making decisions for yourself. If you lose mental capacity and do not have a registered LPA, then this can cause an array of difficulties for your loved ones.

 

In order for your finances to be dealt with and for health and welfare decisions to be made without an LPA in place, someone would need to apply to the Court of Protection to become a Deputy. This is an extremely lengthy and costly process. It should also be noted that if it got to this stage you would have lost control over the process and you would have no power to choose who is appointed as your Deputy. It is therefore entirely possible that somebody you would not wish to act as Deputy is appointed to manage and deal with your personal affairs. To avoid such situation you should prepare LPAs.

 

On this basis, LPAs should therefore be entered into as soon as possible and you should not delay preparing them.

 

Why prepare an LPA?

 

Further to the reasons mentioned above, an LPA allows you (the Donor) to choose one or more people you want to look after your affairs – you should carefully consider who you appoint. The person/people you choose are known as Attorney(s). If you choose more than one person, you have the opportunity to decide how you want your Attorneys to act and make decisions together.

 

An LPA gives you more control over what happens to you in the event that you lack mental capacity in the future and can no longer make your own decisions.

 

Attorneys must follow the principles of the Mental Capacity Act and most importantly, Attorneys must always act in your best interests.

 

Types of LPAs

 

There are two types of LPA:

  • Property and Financial Affairs; and

  • Health and Welfare.

You do not have to make both types of LPA at the same time and depending on your circumstances you may wish to only prepare one type, rather than both.

 

Both types of LPA must be registered at the Office of the Public Guardian before they can be used.

 

A Property and Financial Affairs LPA will come into effect as soon as it is registered. This means that Attorneys will be able to start making decisions about property and financial affairs immediately, even if the Donor is still capable of making such decisions. If a Donor does not want an Attorney to be able to do this, then they need to make sure the LPA clearly states this.

 

A Health and Welfare LPA is only able to be used when the person who made it (Donor) has lost their mental capacity.

 

Next steps

 

Once the appropriate LPA forms have been completed, they need to be registered with the Office of the Public Guardian.

 

The LPAs only come into effect once they have been registered, so they need to be sent promptly to the Office of the Public Guardian. There is a registration fee of £82 per LPA, so it is important that the correct fee is provided when they are sent, otherwise this can cause further delays.

 

The registration process takes approximately 10 weeks, as the Office of the Public Guardian have to ensure that there are no objections to the registration. Once registered, the Office of the Public Guardian will notify the Donor and Attorneys.

 

How to end an LPA

 

If you have registered an LPA and you decide that you would like to end it, then you can do this as long as you have mental capacity to do so. You would need to send the original LPA(s) to the Office of the Public Guardian alongside a written statement called a deed of revocation. The deed of revocation must be signed, dated and witnessed.

 

If an appointed Attorney decides that they no longer want to act as your Attorney, then they can choose to stop at any time. In order to cease acting they would need to complete the relevant disclaimer form (LPA005) and send this to you (Donor), the Office of the Public Guardian and any other Attorneys.

 

An LPA will automatically come to an end as soon as the Donor passes away.

 

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 0208 004 0065, by email at hello@southgate.co.uk or using the form below.

 

The contents of this article is general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published.  Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.

 

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