With people living longer and increasingly more people living with illnesses like dementia and lose mental capacity, a Lasting Power of Attorney is becoming more critical. There are currently 900,000 people living with dementia in the UK, and the World Health Organisation has reported that dementia cases will triple by 2050. These stark figures underpin the importance of planning ahead and creating an LPA to express your views and wishes.
Lasting power of attorneys is there to protect you in the case of lost mental capacity due to old age, illnesses, or an accident. As mental capacity can be diminished at any age, setting up an LPA as early as possible allows us the peace of mind that our wishes will be upheld, and our voices heard in the event we are unable to manage our affairs.
What is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney is a legal document that enables you (the ‘donor’) to name one or more people (the ‘attorneys’) to make decisions on your behalf during your lifetime. If you experience an illness or an accident and cannot make your own decisions, a lasting power of attorney gives you more control over what happens to you.
There are two different types of lasting power of attorney:
- Health and Welfare – covering decisions about health treatments and personal care
- Property and Finance – covering financial decisions about managing property and financial affairs
Lasting Power of Attorneys is a legal document(s), you must be at least 18 years old and have mental capacity (able to make your own decisions).
Lasting power of attorneys are registered under the Office of the Public Guardian (OPG). The Office of the Public Guardian (England and Wales) is a government body that within the context of the Mental Capacity Act 2005, regulates the actions of deputies, attorneys and guardians who act to protect the financial affairs and health and welfare of people who have lost mental capacity for these making decisions.
What are the different types of LPA?
There are two types of lasting power of attorney, Health and Welfare and Property and Financial.
- Health and Welfare
This LPA gives an attorney the power to make decisions about things like:
● Your daily routine, such as eating, washing, dressing and social activities
● Your medical care
● Moving into a care home or where you should live
● Life-sustaining treatment
● This LPA is only used when you cannot make your own decisions.
- Property and Finance:
This lasting power of attorney refers to your property and financial affairs and gives an attorney the power to make financial decisions about money & property, such as:
● Buying and selling property
● Managing a bank or building society account, business bank account or business affairs
● Paying bills
● Collecting a pension or benefits
● Arranging repairs to the property and financial affairs
● This LPA can be used as soon as it’s registered with your permission
What’s the difference between a will and a lasting power of attorney?
As part of planning for the future, many people start putting in place their lasting power of attorney at the same time as getting their will drafted, but it is important to note that these are two separate legal documents.
● A will is for after your death. It specifies what happens to your money, property, and possessions after your death. It also specifies who will be assigned to look after those things after you die.
● An LPA is for when you are still living. If you cannot make financial decisions for yourself while still living, a lasting power of attorney allows people (called attorneys) to follow your instructions while still alive.
Who can I choose as my attorneys?
Your attorneys (whether health and welfare attorney or property and financial attorney) must be 18 or older, have ,mental capacity and be people you trust to act within your best interests. A family member, partner, friend, or a professional such as a solicitor can act as an attorney. You do not need your attorney to live in the UK or be a British citizen.
There is no limit to the number of Attorneys you can name, although it is most common for people to pick between two and four and provide back-ups if someone cannot act on their behalf. You can choose different attorneys to look after your health and welfare and your property and finance, perhaps looking at what decisions are better suited to which people.
Having a lasting power of attorney in place allows you to control who manages your affairs if you lose capacity.
What are the legal responsibilities of attorneys?
As an attorney, your legal responsibilities include:
● Taking reasonable care when making decisions on behalf of the donor and acting in their best interests
● Following the terms of the LPA
● Assisting the donor to make their own decisions rather than simply taking control
If you are appointed as an attorney under a Property and Finance LPA, you do not have the authority to make Health and Welfare decisions, and vice versa. However, you can be appointed as an attorney under both types of LPA.
As an attorney, you could have to make difficult decisions regarding healthcare, such as moving the donor into a residential facility and handling finances, such as filing benefits claims and dealing with taxes on behalf of the donor.
Who are certificate providers, and what do they do?
A certificate provider is a person who signs your Lasting Power of Attorney to certify that a third party has used no fraud or undue pressure and that the donor understands the purpose of the LPA.
A certificate provider must:
· Have known the donor personally for at least two years or,
· Be a professional with the relevant expertise, such as a doctor, solicitor or social worker.
· A certificate provider must also be 18 or older and of sound mind.
Why do I need a lasting power of attorney?
Having an LPA will save you money in the long run, as the alternatives are often costly, complex, and time-consuming. It’s not just older people in poor health who need to think about LPAs. Mental capacity can be diminished at any age due to illness and accidents. Creating a lasting power of attorney is often a simple process, but many people put it off until it’s too late. Without an LPA in place, people’s loved ones must go through costly and complicated procedures to try and gain the authority needed to make decisions for a loved one and honour their wishes.
By establishing a lasting power of attorney, you can feel at ease knowing that someone you trust will be able to take care of your affairs if you become incapable of doing so yourself due to old age, illness, or an accident.
It is important to note that being married or in a civil partnership does not entitle your partner to handle your finances and make healthcare decisions in the event of your incapacitation. Without an LPA, they will not have the authority. People often believe that their loved ones have the right to make medical decisions (e.g. life saving treatments) on their behalf when they become ill, but this isn’t always true. Healthcare professionals will need to consult with your family about medical choices. However, without an LPA for Health and Welfare, your family members are not legally permitted to make medical decisions on your behalf.
When you set up an LPA, you can choose who to appoint as your attorneys. This means that you can select the people you trust to act within your best interests. If you lose capacity without an LPA in place, your loved ones will have to apply to the Court of Protection to become your deputy. Despite the courts’ best efforts, you cannot assume that they will decide and choose the person you wish to serve as your deputy.
You can express your identity and what matters most to you by planning ahead and creating a lasting power of attorney. LPAs reflect your wishes and define your identity. We each have different views on medical/life saving treatment and end of life care, and an LPA allows you to express this and ensure that your wishes are followed and upheld by people you trust. An LPA secures that your voice is heard on medical and financial affairs and helps you maintain control of these even when you cannot make decisions yourself.
What happens if I do not have a lasting power of attorney?
In the absence of a Health and Welfare LPA, medical professionals will try and make decisions based on your best interests. If your spouse or loved ones believe your wishes to be different to this advice, they would need to apply to the Court for a Deputyship Order.
In the absence of a property and finance lasting power of attorney, no one will have the authority to manage your affairs, such as accessing bank accounts or investments on your behalf or selling your property. In the same way as an absent Health and Welfare LPA, if you do not have a property and financial LPA, someone would need to apply to the Court of Protection to obtain legal authority to manage your financial affairs, and the court will decide who should be appointed. This process is a complex, time-consuming and costly avenue to use.
When a person applies to the Court for a Deputyship Order, the person chosen becomes your ‘deputy’, and unlike an LPA, this type of appointment is significantly more involved and costly than being assigned an attorney under an LPA. The application fee for a deputyship is £371, and it can then take up to 5-6 months for the applicant to be appointed. Once you are appointed, you will need to pay an annual supervision fee of up to £320 and a £100 assessment fee if you are a new deputy. Additionally, if the court decides that your case needs a hearing, you will be required to pay a further £494.
Unfortunately, many applicants are unsuccessful as up to 70% of deputy applications are rejected. A solicitor may be appointed deputy and charge separate costs for acting as a deputy in these situations.
What is mental capacity?
Mental capacity means the ability to make or communicate specific decisions when they need to be made. Mental capacity requires understanding what decision you must make, why you must make it, and the likely outcome of your choice. Therefore the Mental Capacity Act allows you to appoint an attorney under a lasting power of attorney.
The charity Age UK says that “some people will be able to make decisions about some things but not others. For example, they may be able to decide what to buy for dinner but be unable to understand and arrange their home insurance. Alternatively, their ability to make decisions may change from day to day. Needing more time to understand or communicate doesn’t mean you lack mental capacity”
What can I include in a lasting power of attorney?
You can provide instructions to your attorney(s), in addition to your general preferences for them to consider. You should create an LPA that reflects your wishes so the things that matter most to you will be taken care of.
When should I make a lasting power of attorney?
To create an LPA, you need to be at least 18 years old and have mental capacity (of sound mind). You must be capable of understanding the nature and implications of the document. If you do not have this mental capacity, you cannot create an LPA, and no one can make one on your behalf.
A lasting power of attorney protects us from old age, illness, and accidents. As we cannot predict if these things may happen or when someone may lose their mental capacity, it’s essential to put an LPA in place as early as possible. When we make an LPA, we need to understand what we want our future care and medical treatment to look like and the people we want to entrust to act on our behalf. However, once your LPAs are created, they are not set in stone; they can be reviewed, amended, and changed as your life and wishes change.
Make sure you don’t wait until it’s too late. Find peace of mind by making your LPAs today.
Planning for the future can feel daunting and overwhelming. That’s why at Brighton Wills, you will be dealing with real people who have your best interests at the heart of our business. We maintain excellent standards through the Society of Will Writers membership, which administers the industry Code of Practice.