Why should you have a Lasting Power of Attorney in place and what is the process of challenging decisions made without one?
Capacity to manage your affairs can be lost for many reasons. As a nation we are living longer, leaving us all more vulnerable to degenerative diseases such as Alzheimer’s. There are also over 850,000 people in the UK currently living with dementia. However, as well as degenerative medical conditions, an untimely accident can lead to a loss of mental capacity. This means that it is essential to have a Lasting Power of Attorney in place, so your loved ones have the ability to make final decisions for you.
Capacity and Lasting Power of Attorney
A Lasting Power of Attorney (LPA) is a document that you can put in place in preparation for the unfortunate event that you may not have capacity to look after your personal and financial affairs. The LPA allows you to make appropriate arrangements for family members or trusted friends to be authorised to make decisions on your behalf. Often two persons are appointed as attorneys to act jointly on behalf of the person who has lost their mental capacity. You can decide which powers are given to the attorneys. The LPA is created and registered with the Office of the Public Guardian (OPG), an executive agency of the Ministry of Justice of the United Kingdom. The LPA must be registered to take effect.
How can an attorney act on your behalf?
There are two different types of LPA; one that can make decisions relating to your financial needs and one for your health and welfare needs. You can create one or either type of LPA to prepare for the future.
Health and Welfare Lasting Power of Attorney
A health and welfare LPA can only be used when you have lost the mental capacity to make your own decisions. The attorneys can make decisions on your behalf regarding things such as your medical care, life-sustaining medical treatment, what social activities you take part in and your general daily routine – washing, eating, etc.
Financial Decisions Lasting Power of Attorney
Unlike for health and welfare, when you appoint an LPA for your financial and property affairs you can restrict some of the decisions they can make. Alternatively, you still have the option to allow them to make all financial decisions on your behalf. Some of these decisions include paying bills and mortgages, managing bank or building society account(s), selling property and arranging repairs to property.
Won’t my husband/wife make decisions for me anyway?
It is important not to assume that if you are married or in a civil partnership your spouse will automatically be able to make decisions on your behalf. If they are not appointed as your attorney this is not the case.
What if I have an Enduring Power of Attorney?
If you have an Enduring Power of Attorney already in place, it is important for you to note that this document does not offer you the same protections as an LPA. For example, it does not allow your attorney to make decisions about your health and general care. Therefore, the importance of having an LPA in place should not be overlooked.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal authority granted to one or more people by a mentally capable person to act on their behalf in property and financial matters should they lose mental capacity. As a person who grants an EPA, you still have mental capacity before you sign over the right. However, some EPAs stated that they could only be registered when the donor started to lose that capacity
What is the difference between Lasting Power of Attorney and Enduring Power of Attorney?
When it comes to LPA and EPA, there are some key differences that distinguish the two:
- Date of commencement– An EPA usually comes into effect as soon as it is registered, while an LPA usually comes into effect when a person loses mental capacity in the future.
- Who can be appointed– An EPA has more regulation on who can be given a Power of Attorney. Multiple people can be appointed, which is not the same for LPA. LPA does however give someone the right to delegate decisions.
- Witnessing– An LPA needs to be supported by a qualified witness who confirms that a person no longer has mental capacity before it comes into effect.
- Method of registration– An application must be made to the courts in order for an EPA to come into effect. An LPA must be registered with the Office of the Public Guardian (OPG) but can come into effect without the need for a court action.
- Areas covered– An EPA only covers financial affairs and property, while one type of an LPA can cover health and welfare too.
Why is it better to have a Lasting Power of Attorney in place?
If you have an LPA and have communicated your wishes to your attorneys it can maximise your chances of having your wishes followed in the future. Having the LPA in place provides the reassurance of knowing that, if the worst should happen, you have chosen someone you trust and who knows you well. Conversely, not having an LPA in place will mean you will be appointed a deputy to make these decisions for you instead. A deputy is far less likely to fully understands your wants and needs.
What happens if I do not make a Lasting Power of Attorney and later lose capacity?
Should you lose capacity without having an LPA in place, an application can be made by your loved ones to the Court of Protection for them to be appointed as Deputy. This is an expensive and lengthy process which can take up to 10 months. During the process, the Court will delve into the suitability of the applicant, including their criminal and financial background. This means there the Court will leave no guarantees that the applicant will be appointed. Where the Court fails to approve the application of a loved one, they may issue a Court of Protection order and appoint a professional deputy, such as a solicitor, to act. The Court of Protection order is a legal document from the Court, which appoints someone else (a deputy) to make decisions for the individual who has lost their mental capacity. This means that the relevant government department oversees the deputies under the order of the Court, to ensure the account holder’s interests are handled correctly. Put simply, you have no control over who is appointed to make personal decisions for you if you do not have an LPA in place. There may be decisions made which your family and friends know you would not have wanted to happen. Should any serious disputes arise, your family will once again be required to apply to the Court of Protection.
When should I make my Lasting Power of Attorney?
If you haven’t made an LPA then you should do it now, while you still have mental capacity. Many people put this on hold, particularly those who live busy lives and feel that they don’t have the time. However, not having an LPA is a more time consuming and expensive process than setting one up. Mental capacity can be lost at any moment, and not just by a mental illness such as dementia. Simple things, such as a bump to the head or even a car accident can take people by surprise. Ensure all your wishes are carried out by those you love, by appointing them as your Attorney today. Don’t be one of the estimated 55,000 people whose affairs are placed under the jurisdiction of the Court of Protection, where your family has no say over things like medical treatment and are left with the stress of dealing with officials every time a decision has to be made.
How Starck Uberoi can help
Our probate lawyers prepare many Wills and put Lasting Powers of Attorney in place each year. For more information, please visit our website our Wills and Probate page. Our wills and probate solicitors in Brentford can help you put your affairs in order, as can our teams at our Ealing office, Belgravia solicitors, our Richmond team, our Canterbury team and our wills and probate solicitors in Pinner. For an appointment at any of our offices, email us at solicitor@starckuberoi.co.uk or call 0208 840 6640.
