How to safeguard your health and welfare and your finances
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you (the donor) to appoint up to four people to act as your attorneys to either help you make decisions or to make decisions on your behalf.
There are two types of LPA:
- Property and Financial Affairs – allows your attorney to manage your finances such as paying bills and making investment decisions.
- Health and Welfare – allows your attorney to manage health and welfare decisions should you lose capacity to do so. This can include, medical care, moving into a nursing home or even consenting or refusing to life sustaining treatment.
It is important to note that in the case of the financial power, you can decide when your attorneys can act on your behalf, which may be when you want them to or if you lose capacity and you need them to. However, in the case of the health & welfare LPA, your attorneys will only step in as and when you no longer have the capacity to make decisions for yourself.
Who should I appoint as my Attorneys?
You can choose anyone over the age of 18 to act as your attorney. They can either be family, friends, professionals or a mixture of all of these. It’s imperative that you trust your attorneys as they will have the authority to make any decision that you would normally make and/or sign any document that you would sign. If you choose to have more than one attorney, then you will need to decide how they will act. In most cases, this is likely to be what is known as “jointly & severally” which basically means that they can act independently of the others and perhaps share the responsibilities of looking after you between them. In some cases you may want to appoint your attorneys to act jointly which means that every decision has to be agreed and acted upon by all the attorneys agreeing and acting together which can often make it difficult to manage your affairs easily and you should consider whether this is a wise move for you and your reasons for choosing this option. You can, as a compromise, set out when your attorneys can act jointly and severally and when they must act jointly. Perhaps dictating that they must all act together and in agreement when making major decisions such as selling your house.
When does the LPA take effect?
The LPA needs to be registered with the Office of Public Guardian before your attorneys can use it. The registration process can take up to two months, providing there are no issues with the document. I always advise my clients to register it immediately so that it is ready to be used should it be required. Furthermore, until the document has been registered, if there are any issues with the document and, by then, you have lost mental capacity, the document could be declared void and therefore fail.
What will happen if I don’t prepare an LPA?
If an LPA hasn’t been prepared and the donor has lost capacity, then an application will need to be made to the Court of Protection so they can appoint a suitable person to manage your affairs, known as a deputy. This a more complex and timely process than preparing an LPA and the deputy will be governed by the Court of Protection. They will have to submit an annual report and will have to obtain the Court’s consent to make any significant decisions.
How do I make an LPA?
Anyone who has capacity can make an LPA and I strongly recommend that a solicitor is instructed. A solicitor will ensure that you fully understand the nature and effect of the LPA and that you have considered all the options available to you.