Lasting Powers of Attorney

The Problem

None of us can guarantee that we will remain physically and mentally healthy forever. Incapacity, illness or accident could hit any of us at any time. If you cannot deal with your finances or make decisions about your health and welfare, who will do so? How will those around you cope and do what you want them to do?

The older we become the more likely this is to occur. Making a Will doesn’t solve the problem, as your Will does not take affect until you die.

It is important to put arrangements in place early, so that if there comes a time where we are incapable of making our own decisions someone we trust can make those important decisions on our behalf.

You can do that through a Power of Attorney. Before 1 October 2007 you were able to make an Enduring Power of Attorney (EPA) but these have since been replaced by a new Power of Attorney called a Lasting Power of Attorney (LPA). Existing EPAs made before 1 October 2007 will continue to be valid but anyone wishing to make a Power of Attorney now will need to consider making an LPA.

LPAs can only be made while you are still capable of giving your consent to someone else managing your affairs. It allows you to choose someone now that you trust to make decisions on your behalf with regard to your property and affairs or personal welfare at a time in the future when you no longer wish or are able to make those decisions yourself.  The person you choose is called your “attorney” and you can choose more than one if you wish. They can make decisions on your behalf about either your personal welfare or property and affairs or both. This is an important role and one that the person chosen has to agree to take on.

When you make an LPA, a certificate provider signs a form of certificate stating that you have understood what you are doing and have not been put under any pressure to do it.  Certificate providers may be a registered health care professional (this includes a GP), a registered social worker, an Independent Mental Capacity Advocate (IMCA), a barrister, a solicitor or advocate. You may also have someone who has known you personally over the last two years be your certificate provider. We will be happy to act as a certificate provider as long as we are not appointed as attorneys.

Your LPA does not come into effect until it is registered with the Office of the Public Guardian. In the LPA you can list up to five people who should be informed by the Office when it is registered. That ensures that people you trust, who are separate from your attorneys, are informed that your affairs are about to be taken over by someone else. This gives them the opportunity to object. Your attorneys have to act in your best interest. You can also give guidance in the LPA for your attorneys on how to manage your affairs.  This is not legally binding but will help them understand your wishes.

The Property and Affairs LPA allows your attorney to manage your finances and properties whilst you still have capacity as well as after you lose capacity e.g. your attorney will be able to operate your bank account, pay your bills or collect your benefits. You can impose restrictions e.g. preventing them selling a property. You can also state whether you want the attorneys to act before you have lost capacity to act for yourself, or only after you have lost capacity.

The Personal Welfare LPA covers health and personal matters and can only be used once you have lost the capacity to make a particular decision yourself e.g. if you are unconscious or because of the onset of a condition such as dementia. Your attorneys can make some significant decisions such as giving or refusing consent to particular types of healthcare, including medical treatment decisions and deciding whether you continue to live in your own home or whether residential care would be more appropriate for you.

If you do not have a valid EPA or LPA before you lose your mental capacity the Court of Protection has the authority to appoint a deputy for you. However this process can be slow and expensive. 

By making a Lasting Power of Attorney you do not lose control over your affairs; you are taking appropriate steps which will give you and those around you the peace of mind that you have safeguarded your future. 

If you need further information, please contact Justine Hardy or Selena Hinds