What is a Lasting Power of Attorney?
The LPA is a legal document that enables a person’s trusted representative(s) – known as Attorney(s) – to oversee their finances and welfare. Dealing with money and welfare matters in old age or ill health can be difficult and worrying – perhaps even impossible. Although a friend or family member could apply to the court be appointed a “Deputy” to handle your affairs, this can be a lengthy and costly process. The simplest solution is for you (the Donor) to appoint one or more Attorneys to manage your affairs on your behalf if you become unable to do so.
Are there different types of LPA?
Yes, there are two different types:
A Property and Affairs LPA allows your Attorney to make decisions on your behalf about your property and affairs, including paying your bills, collecting your income and benefits or selling your house. These decisions are subject to any restrictions or conditions you might wish to stipulate. It does not allow your Attorney to make decisions about your personal welfare.
A Health and Welfare LPA allows your Attorney to make decisions on your behalf about your personal welfare, and can include whether to give or refuse consent to medical treatment on your behalf and deciding where you live. These decisions can only be taken on your behalf when you lack the capacity to make them yourself, for example if you are ill, unconscious or because of the onset of a condition such as dementia. It does not allow your Attorney to make decisions about your property and affairs.
Who might need an LPA?
Most of us will be fortunate enough to live long lives, but we may not always be able to manage our own affairs. If you were to suffer significant physical or mental incapacity, an LPA could make your life much easier and less stressful for you and your loved ones, as well as protecting your interests. An LPA is a little like an insurance policy: you hope that you’ll never need it, but if you do – it’s invaluable.
How do I make an LPA?
The LPA is an official form that must be completed and signed by the Donor and Attorneys in the presence of a witness. It also needs to be certified and must be registered with the court before it can be used.
What can my Attorney do?
You can give your Attorney general authority to manage all your finances, including paying your bills, signing cheques, dealing with your bank, and buying or selling property and making decisions on medical treatment. However, you can restrict your Attorney’s powers if you wish. For example, you may want to insist that they obtain medical evidence before they can use their powers, or require them to account for their actions annually to a solicitor or relative.
When do my Attorney’s powers become effective?
Once a Property and Affairs LPA is signed, you can continue to handle your own financial affairs. If you prefer your Attorney to help you with them, then the LPA must be registered. However, once an Attorney believes that you are, or are becoming mentally incapable, they must register the LPA with the Court of Protection in order to take full control of your financial affairs.
A Personal Welfare LPA must also be registered before it can be used, but decisions can only be made on your behalf when you are unable to do so yourself.
What if I want to cancel the LPA?
Until such time as it is registered, you can always destroy your LPA. However once the LPA is registered with the Court of Protection it needs the courts permission to be changed or cancelled.
What happens when I die?
When you die, the LPA is no longer valid and the powers of your Attorney(s) end.
Can Attorneys charge for their services?
Professional Attorneys are entitled to charge for their work. If you appoint a friend or family member as Attorney, then they may claim reasonable out-of-pocket expenses. Additionally you can make provisions for your friends or family members who act as attorneys to be paid.
Who can advise an Attorney about their role?
Your Cardinal Wills consultant is happy to offer advice and guidance to an Attorney, and detailed advice and guidance is also available from The Office of the Public Guardian.
On the receiving end… a case study
Frank Weston’s life changed in a hundred ways when his elderly mother Grace suffered a major stroke. Unable to walk or communicate, she needed full-time care after leaving hospital. Frank was left not only with the problem of caring for her as best he could, but also with managing her affairs.
Frank and Grace had always assumed that he’d be able to look after her finances if she became unable to do so herself. Now, however, she was deemed to be mentally incapable and therefore a Lasting Power of Attorney could not be created.
Frank had to apply to the Office of the Public Guardian for the only alternative – appointment as a “Deputy”. The process was lengthy and time-consuming, and meant that her money was untouchable for months, despite all the funds she needed for her care, transport, medical expenses and support. Eventually, Frank was appointed a Deputy for which he had to pay an application fee and ongoing annual fees. After that, Frank had to suffer the indignity of regular checks to prove that he was looking after his mother appropriately. “If only we’d arranged an LPA when she was healthy,” said Frank, “all this distress, expense and worry could have been avoided. Since this happened, I’ve made sure I’m covered by an LPA so if the worst happens to me, no-one else in my family will have to go through what Mum and I have endured”.