News
21 November 2010
Lasting Powers of Attorney
Prudent planning for the future
The benefits of drawing up a will are widely recognised. It gives you the opportunity to set out who you want to deal with your estate upon your death and how you want it to be administered. There are also steps that you can take to set out decisions in advance for the possibility of you being incapable of managing your own affairs during your lifetime.
Lasting powers of attorney
A Lasting Power of Attorney (LPA) is a legal document which will allow you to choose someone (the attorney) who you trust to make decisions on your behalf if, at some point in the future, you are unable to do so yourself or you simply ask them to help you with your affairs.
The document will be specific to you. You will decide who will have the power to control your affairs and the precise limits of that power.
Who can make an LPA?
You will be able to make an LPA if you are 18 years or over, with the capacity to do so. To check this and prevent fraud you will need to provide a certificate of fitness, which is part of the LPA form. The certificate must be signed by a suitably qualified person stating that you fully understand what is involved in make the LPA, what it will mean to have one in place, and that no fraud or undue pressure is being used to make you create an LPA.
You cannot make an LPA jointly with another person; each person must make his or her own LPA.
Who can I appoint?
You can appoint a relative, friend, or anyone willing to act for you, providing they are aged 18 years and over. It is essential to appoint someone you trust to make decisions in your best interests.
You may wish to appoint more than one attorney. If this is the case, you can appoint them to act as follows:
- Jointly; or
- Jointly and severally; or
- Jointly for some decisions and jointly and severally of other decisions.
You can also appoint replacement attorneys to act in place of any attorney who is no longer able to or does not wish to make decisions on your behalf. For example you may wish to appoint your spouse as an attorney, then appoint your son/daughter as a replacement if you spouse should die or can no longer act.
When can it be used?
After completing the form and the Certificate, the LPA must be registered with the Office of the Public Guardian before it can be used. Registration can take place at any time after you have created the LPA. There will be a fee for registration. The benefit of registering the LPA shortly after it is created is that it will be ready to be used by your attorney when it is needed.
Safeguards
An LPA is a very powerful document. Your attorney will have the same control you have over your money, savings and investments and property. You may therefore wish to include restrictions or conditions.
For example, you may wish the LPA only to be used if you lack capacity and require medical evidence stating that you have lost capacity.
There are also safeguards built into the LPA document itself:
- The document must be registered with the Office of the Public Guardian before use. They will keep a register of LPA’s and can be asked to look into what any attorney does if someone thinks they might not be acting in the persons best interests. Any serious problems will be sent to a special Court called The Court of Protection. The Court has the power to remove the attorney.
- The Certificate of Fitness must be submitted as referred to earlier.
- You can select people to be notified of any application to register the document
- Your attorney must have regard to the Code of Practise which provides guidance on the law governing LPA’s – The Mental Capacity Act 2005.
Types of LPA
- A property and affairs LPA which allows your attorney authority to deal with your property and finances.
- A personal welfare LPA which allows your attorney to make welfare and healthcare decisions on your behalf, only when you lack the mental capacity to do so yourself.
Property and affairs LPA
A property and affairs LPA will give powers to your chosen attorney to make financial and property decisions on your behalf. The attorney will be able to do anything that you can do now, however they will only be able to make decisions within the scope of the powers you give them. If you are able to give it, they must seek your approval to everything they do. Such powers might include:
- Opening, closing or operating any account containing money.
- Claiming and receiving on your behalf, for example, all pensions, benefits, allowances, services, financial contributions, repayments, and rebates to which you may be entitled.
- Making all tax returns and adjusting and settling any claim for tax.
- Paying your household expenses.
- Buying, leasing, selling and otherwise dealing with any interest in property.
- Making gifts on your behalf, including any limits on the size of such gifts or the people that receive them, subject to any restrictions.
- Paying for private medical care and residential care costs.
The list above is just to give you examples of the types of powers that are included in a property and affairs LPA and is not intended to be exhaustive.
Personal Welfare LPA
A personal welfare LPA will give powers to your chosen attorney to make decisions about your health and personal welfare, such as where you should live, day to day care, consenting to or refusing medical examinations and treatment, details regarding community care services, whether you would like to take part in social, leisure and educational activities, your personal correspondence and papers and what you would like to happen to them.
You can also authorise your attorney to have access to personal and confidential information. In particular you can, if you wish, permit your attorney to consent or refuse life sustaining treatment.
The difference between these types of LPA is that a personal welfare LPA will only take effect when you lack capacity to make decisions and it has been registered. With a property and affairs LPA, it can be used from the moment it is registered subject to any restrictions or conditions you have made, whether or not you have lost capacity.
What happens if you don't make an LPA?
Should you lose capacity at any time during your lifetime, unless you have appointed an attorney under a LPA, then someone will have to apply to the Court to be appointed as your deputy. This is a long, expensive and complicated procedure and you cannot choose who will act for you. Much better to plan ahead!
For further information and advice, contact Howard Heath on 01782 205 000.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute 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 take appropriate professional advice upon their own particular circumstances.
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