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What is an LPA?
The public's awareness of LPAs is increasing - but a high proportion of the general public still do not know how an LPA operates and how important they are.
In case you are unaware of them a Lasting Power of Attorney (to give them their full title) is a paper-based document that sets out who is to make decisions for a person if that person ever be unable to make a decision for themselves due [say] to lack of mental capacity. The person making the LPA is called the 'Donor'. The people acting on behalf of the donor are called 'attorneys'.
There are two types:
- LPA Health and Welfare ("H&W); and
- LPA -
Property & Financial affairs ("P&FA").
The LPA Health and Welfare allows attorneys to make decisions regarding the donor's health and welfare. Specifically they can decide where the donor lives, who comes to see the donor, and (if the wording of the LPA so authorises) whether the attorney is given medication or undergoes any operation.
The LPA Property and Financial Affairs allows attorneys to spend the donor's money and undertake financial transactions on behalf of the donor's behaIf. I.e. they can run the donor's bank account(s).
The Donor's attorneys (and replacement attorneys) are governed by the Mental Capacity Act 2005 when making their decisions. They are accountable to the Office of the Public Guardian/Court of Protection.
Registration
Before an LPA can be used by the attorneys it must first have been registered with the Office of the Public Guardian ("OPG").
LPA Operation
After registration the Attorneys will need to register the LPA P&FA with each financial institutions they are going to be undertaking transactions with on behalf of the donor.
Why Should You Make Powers of Attorney?
A common perception is that it is only the elderly who lose mental capacity. You can in fact lose your mental capacity at any time in your life (e.g. through a serious car accident, or mental illness).
A second common perception is that your family can make decisions on your behalf should you lose your mental capacity. But this is not correct. Without the appropriate legal document (i.e. a Lasting Power of Attorney) you will find that your preferred family member has little say in your health and welfare (and especially so if you are unmarried), and will almost certainly have no say in your financial affairs.
If you lose your mental capacity the Mental Capacity Act 2005 is quite clear: It says that if you did not make an appropriate LPA and you lost your mental capacity than the Court of Protection would appoint a ‘Deputy’ for you.
That deputy could be the Director of Social Services (in which case Social Services take over your affairs) or it could be a member of your immediate family if they apply direct to the Court of Protection for a Deputyship order.
How Much Would It Cost for My Family to Become My Deputy?
Costs vary depending upon the circumstances of the person who has lost their mental capacity - but we have heard of figures between £2500 and £5000. In addition there are ongoing annual costs.
The application for a ‘Deputy’ is long and intrusive. Full financial details of the donor and the deputy have to be provided to the Court.
Obtaining a Deputyship Order in respect of the health and welfare of a person is very difficult.
Due to the high costs of obtaining a Deputyship Order many families do not obtain them, but instead feel helpless as they are unable to assist their vulnerable relative.
The Solution
The best solution is to put into place both Lasting Powers of Attorney now, while you have the capacity to do so.
By so doing you will enable the people you trust (e.g. your spouse and/or your adult children) to make decisions on your behalf when you are no longer in a position to do so for yourself.
Hopefully the documents will not actually be needed, and in which case you will have wasted the fees paid for the production of the documents. But those fees are small in comparison to the Deputy fees, and the peace of mind knowing that your family will be able to make decisions on your behalf.
On the other hand if they are required then you, and your family, will be very glad you pay the expense to have the documents in place.
What Is There to Stop My Attorney Abusing Their Position?
Whenever an attorney makes a decision it must always be in the best interests of the donor - see the 'Principles of the Mental Capacity Act 2005 below.
Whenever they (the OPG) are made aware of potential abuse they make enquiries.
The Court of Protection do take legal action where they think an attorney is abusing their position.
They have the power to remove the attorney from their position, to insist that an attorney reverses a decision they have made, and even take the attorney to court. This last option has resulted in attorneys going to prison.
Why Should You Make Two Lasting Powers of Attorney?
The two LPAs operate slightly differently, and deal with different aspects of a person's life. As the statutory bodies increasing demand to tsee these documents an attorney does not want to find themselves only having some powers or even no powers.
We usually recommend potential Donors purchase both types of LPA.
Can I Place Restrictions on My Attorneys?
Yes, both LPA documents allow for the inclusion of both restrictions and guidance notes for an attorney.
Care is needed with the wording - which is one reason why we recommend you use a professional to make these documents.
Can I Make My Own Lasting Power of Attorney?
Yes. Forms can be downloaded from the government website.
In theory the forms are designed for the general public to complete. However many people approach us to help them make the forms for them in view of the amount of typing required, the need for a Certificate Provider to certify that the donor is of sound mind, and the risk of completing the forms incorrectly with the consequences that might entail.
Why should I use Convenient Wills to help make my LPA?
We have significant experience of making and registering Lasting Powers of Attorney - so we save you a significant amount of time researching how to make these documents. If you put a price on your time saved you will see we offer good value.
In addition we have high quality paper and an appropriate printer to print the documents off, scanner to make copies for you, and we act as your ‘certificate provider’ also.
The Principles of the Mental Capacity Act 2005
All LPAs are governed by the Mental Capacity Act 2005.
This act stipulates the principles that an attorney [or deputy] must follow. These are: –
1. An attorney must assume that the incapacitated person can make their own decisions unless the attorney establishes that they are unable to do so.
2. The attorney must help the incapacitated person to make as many of their own decisions as they can. The attorney cannot treat the incapacitated person is unable to make the decision in question unless the attorney has taken all practicable steps to help the incapacitated person to do so but without success.
3. The attorney must not treat the incapacitated person is unable to make the decision in question simply because the incapacitated person makes an unwise decision.
4. The attorneys must make decisions and act in the best interests of the incapacitated person when the incapacitated person is unable to make the decision in question.
5. Before the attorney makes the decision question or acts for the incapacitated person, they must consider whether they can make the decision or at in a way that is less restrictive on the incapacitated person’s rights and freedoms but still achieve the purpose.
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LPAs - why everyone should have two
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