What is a Lasting Power of Attorney? How does it work? Which type do you need? Keep reading, as we’ve got all the information you require.
What does the Law say?
The Law states that if you have the mental capacity to make a decision for yourself, then you have the legal right to make that decision, even if your decision is considered by others to be unwise.
If you do not have the mental capacity to make a decision for yourself, decisions may need to be made by others. Who those others are will depend on whether you have made an LPA (or its predecessor the Enduring Power of Attorney).
When do the courts get involved?
If you lack mental capacity to make decisions and have not registered an LPA then the power to make decisions on your behalf is vested in the courts. The courts have complex rules which need to be followed, and members of your family will have to apply to the court for orders which give them authority to make decisions on your behalf. This is slow, complicated and expensive with fees being paid on an annual basis and every time the court are asked to make further orders.
LPAs and attorneys can provide an alternative
An LPA can help family members avoid most of these difficulties. The LPA is a document which gives one or more persons (called “attorneys”) power to make decisions on your behalf if you lack the capability to do so. Your attorneys have to do everything they can to assist you to make a decision yourself if you are capable of doing so, and can only make the decision on your behalf if they are absolutely certain that you are incapable of doing so.
There are 2 types of LPA:
Property and Financial Affairs LPA
This is an LPA that allows your attorneys to make decisions relating to your property and finance. It can be drafted so that your attorneys can make the financial decisions for you when you have lost mental capacity, or whilst you have capability, temporarily. This could be useful if you want your attorneys to carry out financial transactions on your behalf if you are hospitalised or away on an extended holiday.
Health and Welfare LPA
This allows your attorneys to make decisions relating to your health and welfare including where you live, what medical treatment you receive and who does and does not have contact with you. The most commonly-used feature of a Health and Welfare LPA is that your attorneys can also be given the power to make decisions about whether you are to receive life-sustaining treatment or not.
Individuals who have already granted Enduring Powers of Attorney which deal with their financial affairs should still consider a Health and Welfare LPA as the Enduring Power of Attorney deals with financial matters only.
Registering an LPA
Before an LPA can be used, it has to be registered with the court, via the Office of the Public Guardian (OPG). Registration usually takes around three months and you can choose whether or not to register an LPA with the court immediately, or leave it until you think it is necessary. The court charges a fee for dealing with the registration.
There are pros and cons of registering:
Don’t register
If you don’t reach a stage where you lack capacity, you won’t need your LPA, and will have saved money.
If you don’t register, immediately, but later feel feel you’re losing capacity or need some help, you can ask family members or friends to assist you informally and register the power of attorney alongside.
Register
You might not have family members or friends who can assist you informally. Or you might want the peace of mind of knowing that the LPA exists and is ready to be used. In these circumstance, it might be best to register the LPA straight away.
What is an Enduring Power of Attorney?
An EPA is similar to an LPA but relates solely to financial matters. EPAs were replaced by LPAs. Although EPAs can no longer be created, those executed before 1 October 2007 remain valid.
If the person who has written the EPA (“the donor”) becomes incapable or is becoming incapable of managing their own affairs the EPA has to be registered with the Office of the Public Guardian (OPG) before it can continue to be used fully. Unlike an LPA the EPA can only be registered once the donor starts to lose mental capacity.
LPAs and court fees: pay now or potentially pay a great deal more later
To conclude, whilst an LPA is not without its procedures and cost, those procedures and costs are small in scale when compared with the fees and delay which are suffered when a person lacks capacity and has not made an LPA.
For further information, please contact Melissa Butler on 01756 692878 or email melissa.butler@awbclaw.co.uk.
16 October 2024
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