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This article deals with:
- Dementia;
- Lasting Powers of Attorney; and
- Living Wills
What Is A Lasting Power of Attorney?.
A Lasting Power of Attorney is a legal document that allows you to appoint someone you trust to make decisions on your behalf when you are unable to do so because of mental incapacity. That person will then make decisions with your best interests in mind.
The document comes in two [similar] formats - but each has a different specific objective.
If completed correctly an LPA is a powerful legal document.
Do I need to make an LPA? Can’t my family make decisions for me?
This is a common misconception; many people believe that a family member can make
decisions on their behalf but officially they cannot (They do not have any legal
authority to do so once a person has lost their own ability to make decisions for
themselves.)- and the authorities (e.g. Social services, NHS, and the Banks) are
slowly enforcing the law.
Without an LPA in place both you and your family could face severe inconvenience, and substantial costs. Further, the Law Courts could appoint someone to look after your affairs who knows nothing about you and yet they make decisions on your behalf.
What costs are involved
An LPA must be registered with the OPG (Office of the Public Guardian) before the attorney (i.e. The person nominated by the donor to make decisions on behalf of the donor) can act on behalf of the donor (i.e. The person making the LPA). The cost of registration is £120.
If no LPA is made, and a person looses mental capacity then their family must approach the OPG to appoint a deputy. The initial cost is around £400, with other costs of £600+ . Very quickly costs can escalate.
The best solution is therefore to make an LPA while you have mental capacity.
We are becoming aware of the power of the newly created Office of The Public Guardian;
there are stories of the abuse and hardship the OPG are creating. The Mail Online
exposed the problem in October 2009. There are accounts of this Government department
seizing and freezing the assets of people who are deemed to have lost mental capacity
and have not appointed someone to act on their behalf in such situations - creating
immense hardship for their spouse, their other family members, and their business.
The solution is simple: make an LPA.
Should I wait to make an LPA?
A common misconception is that you only loose mental capacity with old age. Dementia,
serious illness, or accident though are also causes for the loss of mental capacity,
and can occur at any time in life.
When you loose capacity to make your own decisions then:
- All of those authorities and mandates that you have given before hand (e.g. The authority for your daughter to collect your pension from the Post Office) are terminated. All ‘general powers of Attorney’ cease to be legal. Unless you have taken the appropriate action listed below then, officially, only the Court of Protection can make decisions on your behalf.
- Your bank accounts should be frozen. This includes joint bank accounts. The reason for this is the your Bank needs to protect the monies of their now vulnerable client. This action can create immediate financial difficulties for the other party to a joint bank account as they have lost access to their money.
- The Court of Protection will expect a family member to apply to them to become your
attorney. The process though is time consuming and, if you have sizeable assets,
expensive. If no one applies then they will appoint someone on your behalf -
which is even more expensive.
Rather than having anyone from your family, or indeed a complete stranger, making decisions on your behalf most people would prefer to nominate someone of their own choice. The law allows you to do so; simply you make a Lasting Power of Attorney (LPA). There are two slightly different forms to choose from.
Lasting Power of Attorney - Property and Affairs
The first (and more common) LPA is the ‘Lasting Power of Attorney - Property & Affairs’
(referred to as LPA PA) that allows you to plan ahead by choosing one or more people
to make decisions, on your behalf, regarding your property and financial affairs.
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Lasting Power of Attorney - Personal Welfare
A second LPA is the Lasting Power of Attorney - Personal Welfare. (referred to
as LPA PW); this is more complex than the LPA PA. The LPA PW allows your nominated
attorney to undertake decisions on your behalf relating to your personal welfare.
Both documents are powerful. Both need to be registered with the Office of the Public
Guardian before your attorney can act under the LPA. Both incur registration fees
at the time of registration - unless the donor’s circumstances qualify for an exemption.
And both documents require a ‘Certificate provider’ to certify that the donor (the
person making the LPA) was of sound mind at the time the document was first made.
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Certificate Provider
You can make your own LPA. You can obtain the documents from the Office of the Public Guardian. Be warned though: your signature must be witnessed by someone who then completes a certificate stating why they have the skills to act as a ‘certificate provider’. Many LPAs are rejected on this point; we (Convenient Wills) are sufficiently skilled (and have the certificate to prove it) to undertake the ‘certificate provider’s role.
We provide both LPA PA and LPA PW for people living local to Stoke on Trent. We can oversee the registration of these documents with the Office of the Public Guardian where required. If you would like our assistance please register your interest.
Related Topics:
- Long Term Care -
and how to protect your property; - Living Wills -
explained; - Register your interest -
to make your LPA; - Pre Paid funeral plans
Lasting Power of Attorney FAQs
Can I make my own LPA?
Yes. The LPA is designed, in theory, for the public to be able to ‘make their own’.
However, there is a provider’s certificate that does need to be completed - and there
are only limited people who can provide such certificates - so you will almost certainly
incur costs in the LPA production.
Why does the price for an LPA vary so much from provider to provider?
The price often reflects the level of risk the provider feels exposed to; these plans do carry significant risk for the supplier of the product.
Why are so few professionals prepared to act as attorneys?
The new laws require a person to make a decision for themselves if they possible can. As people can make some decisions some days, and not make the same decision the next this places a very high demand on an attorney’s time. On the other hand if they cut the corners they could end up in Court. It is really a ‘No Win’ situation for them.
How long does it take to register an LPA?
The target time is 6 weeks.
I already have an EPA (Enduring Power of Attorney). Do I need to upgrade to a LPA (Lasting Power of Attorney)
No. Your existing EPA is perfectly valid - assuming it was correctly executed.
Living Wills
Do you regard the quality of life as more important than life itself?
In the UK you can create a ‘Living Will’. This document sets out that if ever you
are unable to communicate your wishes - as a result of a serious illness or set of
circumstances - then you do not wish to be kept alive for the sake of being kept
alive because medical and technology can do so; you prefer to die with dignity.
The same wishes can be expressed in a Lasting Power of Attorney (Personal Welfare), but sometimes it is more practical to create a Living Will than an LPA (PW). If you would like to know more about the Living Will and our service please register your interest.
- Lasting Powers of Attorney • Living Wills
- Personal Welfare • Office of the Public Guardian
- Property and Affairs
Dementia, mental capacity, the MCA 2007, and Lasting Powers of Attorney.
