Lasting Power Of Attorney – The Facts

In the UK we are very good at being prepared for the worst. 

If you own your home, most mortgage companies insist you have buildings insurance and it is a legal requirement to have motor insurance if you use your car on roads and in public places.

However, when it comes to safeguarding our future, for example, if something were to happen to us that affected our mental capacity, few of us are as prepared.

With life expectancy on the increase, and the number of people with dementia in the UK expected to exceed one million by 2025 (according to the Alzheimer’s Society), this is something that is likely to affect more and more families. Without a plan for how to deal with this, many families may have to deal with complex legal situations and expensive court proceedings in the event that their relative loses their mental capacity for any reason.

One way to plan ahead, and to ease the stress and burden on your family, is to create a Lasting Power of Attorney (LPA).

What is a Lasting Power of Attorney (LPA)?

If you have never heard of an LPA before you are not alone; almost half of over 45 year olds do not know what they are (according to research commissioned for a report by the Office of the Public Guardian).

Lasting Power of Attorneys were introduced in October 2007 and replaced Enduring Powers of Attorney (EPA) – although an EPA created before October 2007 is still valid.

A Lasting Power of Attorney is a legal document which allows you to give someone you trust (see below for more information on who you can choose) the legal authority to make decisions on your behalf, should you lack the mental capacity to do so at some point in the future. This person is referred to you as your attorney.

There are two types of LPA:

1. Lasting Power of Attorney for Property and Financial Affairs

A property and financial affairs LPA allows you to appoint someone you trust to make decisions about your assets and finances on your behalf.

A LPA for financial decisions can be used when you simply no longer wish to make decisions about your financial affairs, even though you may still have the mental capacity to do so.

You can empower the person/s you choose to:

• Pay your mortgage and bills
• Buy and sell property
• Invest money
• Collect wages, pensions or benefits
• Arrange property repairs

2. Lasting Power of Attorney for Health and Welfare

A health and welfare LPA allows you to choose someone to make decisions about your health and living arrangements. It can only be used when you are no longer able to make those decisions.

You can empower them to make decisions about things such as:

• Where you live
• Your medical care
• Your day to day schedule (who you see, what you do)
• Your diet

You can also decide if you would like the person you appoint as your attorney to be able to accept or refuse life-sustaining treatment for you.

A key difference between the two types of LPAs is that you can choose to use the property and financial affairs LPA while you still have capacity, but a health and welfare LPA can only be used once you have lost that capacity.

You can have one or both types of LPA, and you choose the extent of the attorney’s powers. You can also select different attorneys for each type of LPA if you wish.

Who can I choose to be my attorney?

Your Attorney can be anyone over the age of 18. People often choose a partner, member of the family or a good friend. It is important you trust your Attorney to understand your wishes and make the best decisions for you.

Being an Attorney is an immense responsibility and whoever you choose must feel comfortable – and able – to make potentially life-changing decisions on your behalf.

You may choose to split this responsibility between more than one person. You can choose if they act ‘jointly and severally’, meaning they can make decisions on their own, without agreement from the other Attorney(s), or ‘jointly’ meaning they must all agree on every decision.

You can list any restrictions that your Attorney must follow, and provide guidance for them to take into account when making decisions on your behalf.

Benefits of Getting an LPA

Your family have no automatic right to act on your behalf. Without an LPA they will have to apply to the Court of Protection to be appointed as your Deputy. Therefore:

• Getting an LPA can save thousands of pounds in legal costs incurred by going to court to gain control in the absence of an LPA;
• A Lasting Power of Attorney ensures your wishes are followed, by giving the people you trust the right to make choices about your health and welfare, including the ability to refuse life-sustaining treatment.

What Happens If There Is No LPA?

Many people think that should something happen to their mental capacity, their loved ones would automatically be able to act on their behalf.

However, without an LPA the family would need to apply to the Court of Protection to be appointed as Deputy (a role which is similar to that of an Attorney, but is more highly regulated and has differences in the scope of authority).

There is no guarantee that a person will be accepted as a Deputy and if that happens then the local authority will be appointed, giving them the power to make decisions regarding healthcare and financial choices as well as living arrangements.

This process can be extremely stressful and upsetting for everyone involved.

How We Can Help

At Osborne Morris & Morgan we can help you with all stages of putting a Lasting Power of Attorney in place.

If an LPA has not been put been in place, we can also help with the application for Deputyship and the resulting requirements.

For a confidential, obligation-free discussion contact a member of our friendly, experienced team on 01525 378177 or email us on info@ommlaw.co.uk