What is a Lasting Power of Attorney?
A Lasting Power of Attorney (“LPA”) is a document where you give another person/people of your choice power to make decisions on your behalf.
You can make an LPA in relation to your Financial Property and Affairs and/or an LPA in relation to your Health and Welfare. They are separate forms and you must complete both if you wish to make both powers.
Why can’t my next of kin make decisions for me?
The phrase “next of kin” is common but has no legal status in relation to financial decisions. The only person able to manage your finances if you lose capacity to do so yourself, is an Attorney that you have appointed under an LPA or a Deputy appointed by the Court of Protection.
Nobody has authority to make decisions in respect of your health and welfare other than yourself. If you can no longer make decisions for yourself, the healthcare professionals in charge of your care will make those decisions for you, unless you have a Health and Welfare LPA or a Health and Welfare Deputy who has been appointed by the Court of Protection. Without a Health and Welfare Power of Attorney the healthcare professionals must consult with your next of kin but do not have to follow their opinions.
What is an Attorney?
Your Attorney or Attorneys are the people you choose to make decisions on your behalf. You can choose Attorneys to act now and you can also appoint replacement Attorneys if your original Attorneys can no longer act, for example, if they have died, are mentally incapable or bankrupt.
What powers will the Attorney have?
A Financial Property and Affairs Attorney will be able to do almost everything that you yourself can do in relation to your own financial property and affairs, such as running your bank accounts, investing your savings, paying your bills, spending your money on your behalf and selling your property.
A Health and Welfare Attorney will be able to make decisions in relation to matters involving your health and welfare such as where you live, who visits you, what treatment you should receive (including life sustaining treatment), what you eat and what you wear. A Health and Welfare Attorney can only make these decisions if you are mentally incapable of making such decisions for yourself.
A Property and Affairs Attorney can make decisions for you, with your authority, even if you still have mental capacity.
What is ‘incapacity’?
Incapacity is where a person lacks capacity to make certain decisions for themselves. There is no blanket definition for mental incapacity; you may have capacity to make some decisions but not others. Mental incapacity might be brought about, for example, by short term memory loss, Alzheimer’s, dementia, a coma or other illnesses or disorders.
Who can act as an Attorney?
Anyone of your choice providing they are over eighteen and not an undischarged or interim bankrupt. The person or people you choose should be absolutely trustworthy and possess appropriate skills to make decisions on your behalf.
You can appoint more than one Attorney and you can choose if both Attorneys are to act jointly or jointly and severally (can act together or can act separately).
If you do not have any close friends or family members who are willing/able to act as a Property and Affairs Attorney for you, a Partner of Wilson Browne would be willing and able to do so. Our specialist team have the necessary skills to administer your financial affairs.
Are my Attorney’s supervised?
No. You choose your Attorneys and you should choose carefully, they are free to administer your affairs as they think fit, in your best interests.
However, the Office of the Public Guardian are able to investigate if they are alerted to any misuse of the Lasting Power of Attorney.
Are there any safeguards in place?
Yes. The Lasting Power of Attorney cannot be used until it is registered at the Office of the Public Guardian. They check all the legal requirements have been met and register the Lasting Power of Attorney on their central register for other institutions to check it is a valid document. By registering the document, the Office of the Public Guardian are aware of its existence and therefore can investigate any misuse if alerted. Before you register the Lasting Power of Attorney you must notify at least one person that you are doing so. This can be anyone of your choice. You should choose someone (or more than one person) who will object to the registration if they think that there is some reason that the LPA should not be validated e.g. you are subject to undue influence or fraud or your Attorney is unsuitable.
You must also have a Certificate Provider who will certify that they have discussed the LPA with you and that you have understood the legal nature and consequences of the form before signing it. They will need to further certify that you are not under any undue influence or duress and that you have the necessary mental capacity to enter into the form.
There are certain criteria to be met in order to act as a Certificate Provider and a member of Wilson Browne can be a Certificate Provider for you.
So can my Attorney just do whatever they like?
No. They must follow the principals of the Mental Capacity Act 2005 and have regard for the code of conduct. Above all, they are only allowed to make decisions in your best interests. We can discuss these principals with you in detail.
Can I put restrictions on the power my Attorney has?
Yes. You can add restrictions or conditions to your LPA which are legally binding. You can also add guidance (which is not legally binding) to assist your Attorney on how you want things done. We can discuss and draft these clauses for you.
How long does it take to register the LPA?
At present, approximately four to five months. It is therefore important that you do not wait until you need help under an LPA. There is no mechanism to speed up this process.
How much will it cost?
Wilson Browne have a fixed cost regime for the preparation of the Lasting Power of Attorney, acting as Certificate Provider and registration. There is a registration fee to pay to the Office of the Public Guardian (currently £130) however, in certain circumstances you may be entitled to an exemption or remission of all or part of this registration fee. We can discuss this with you and if relevant make the application on your behalf
What if I change my mind?
Even if the LPA has been registered you can revoke it by entering into a Deed of Revocation. However, you must have mental capacity to do so.
Why should I make an LPA now?
If you make an LPA you are making it easier for your friends/family to look after you and your affairs if you are unable to do so in the future, or if things just become too difficult for you to deal with. Running your financial property and affairs may become difficult simply because you lose your hearing and therefore find it difficult to communicate with others, or have a stroke and lose the use of your right arm and cannot sign documents any longer, or simply that you find it difficult to get out and about and cannot collect your pension or draw money from your bank account. By making an LPA you control who manages your affairs for you and how they do it. If you need help in the future and you don’t have an LPA the process is determined by the Court and it can be onerous, expensive and time consuming.
What information should I have before I instruct Wilson Browne to prepare an LPA?
- Who you wish to appoint as your Attorneys,
- Who you wish to appoint as replacement Attorneys (if any),
- How you would like your Attorneys to act, whether jointly or jointly and severally,
- Who you wish to notify of the registration,
- Full names, addresses, telephone numbers, dates of birth, e-mail addresses and occupations for all those named in the LPA.