What is an LPA?
A Lasting Power of Attorney (LPA) is a legal document that allows you (the Donor) to choose a person or people (the Attorneys) that you trust to make decisions on your behalf. This could either be because you want help making decisions, or you want to be prepared for the possibility that at some point you may lack what is known as the mental capacity to make decisions.
What does an LPA cover?
There are two types of LPA and they are completely separate legal documents. You can therefore choose to set up either one or both types of LPA. We always recommend setting up both types of LPA wherever possible.
The first type of LPA is a Property and Financial Affairs LPA. This enables your Attorney to make decisions re-garding your property and financial affairs. As an example, it may be that you are physically unable to get out of the house and require assistance with paying bills and managing your bank accounts. Another common scenario where an LPA would be essential, would be the situation where a relative has lost capacity and their home needs to be sold so that they can go into care. If they lack capacity, then an LPA would be required in order for the sale contract and transfer to be signed on behalf of the Donor.
The second type of LPA is a Health and Welfare LPA. This enables your attorneys to make decisions regarding your health care, medical treatment and general welfare. A Health and Welfare LPA would be useful if you wish for your attorney to decide whether it would be more appropriate for you to continue to live in your own home, or whether you should move into care. Alternatively, perhaps you are in hospital on a life support machine. With a Health and Welfare LPA in place, it would be for your attorney to decide how or if to proceed with treatment. Without a Health and Welfare LPA in place these decisions will still be made, but they will be made by the Doctors or Social Services. They may well consult with your relatives, but the decision will ultimately be out of their hands.
It is very important that you talk to your attorneys about your wishes and preferences in order that they are armed with this information should they ever have to make a decision on your behalf.
When can an LPA be used?
An LPA must first be registered with the Office of the Public Guardian before it can be used. It is therefore usual practice to register the LPA immediately after the LPA is signed.
Once registered, a Property and Finance LPA can be used straight away even if you have capacity (but only if this is your wish). A Health and Welfare LPA can only ever be used if you lack the capacity to make the decision personally.
When is the right time to set up an LPA?
It is never too early to set up an LPA. None of us know what is around the corner. An LPA is not just for the elderly or for those who are starting to lose capacity (perhaps, as an example, due to a diagnosis of Dementia), it is useful in lots of other situations too. Having said that, this is a common reason for clients getting in touch.
Unfortunately, we are often contacted by relatives at a stage when it is too late to set up an LPA. This is because in order to set up an LPA you must still have the mental capacity to do so.
If the Donor does not have the capacity to set up an LPA, then it may be necessary to apply to the Court of Protection for what is known as a Deputyship Order. Whereas an LPA allows the Donor to appoint people that he or she chooses to act on their behalf, a Deputyship Order is a decision as to who should act by the Court. The Court will decide who should act on the basis that the Donor cannot decide for themselves. The Court may or may not choose someone that the Donor may have chosen personally.
A Deputyship application is a much longer, in-depth and costly process in the long-run. Do not put off until tomorrow what you can do today!
There are lots of different ways that you can appoint your Attorneys. We can give you advice and guidance. We can also help you consider whether you should include any special preferences/instructions to your attorneys in the LPA. In order to set up an LPA it is necessary to have someone known as a Certificate Provider to sign the forms to confirm that they have talked to you about things and they are happy that you know what you are doing and you are doing it of your own free will.
We frequently act as Certificate Provider as part of the process of setting up the LPA for you.