Do you know what’s going to happen tomorrow?
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No one knows what is around the corner. We live in a fast paced society with average life expectancy generally going up but stresses of life also increasing. What would happen if suddenly you were to fall seriously ill and cannot make judged decisions yourself? Think about it carefully.
It makes sense therefore to protect yourself by nominating persons who you can trust to take care of your needs (financial and wellbeing), should such a situation arise. Lasting Powers of Attorney are becoming more and more vital and one hopes you never need to turn to them. But remember, when you do need to resort to them, it is too late to take them out.
Balance Consultancy can prepare all documentation for registering Lasting Powers of Attorney and fully see through the entire process from start to finish.
The Mental Capacity Act & its Code of Practice
The Mental Capacity Act (2005) protects people who may not be able to make some decisions for themselves because of, for example;
- Learning Disabilities
- Mental Health Problems
- Stroke or head injuries
It covers people living in England & Wales only and provides a legal basis for how other people can make decisions on their behalf. It allows them to plan in advance for other people to make decisions on their behalf at a point in time when they may lose capacity to do so themselves.
A Lasting Power of Attorney (LPA) is a legal tool that allows you to state who you would like to make decisions on your behalf, should you become unable to do so in the future. It lets you choose a person (or people) you trust to act for you. This person is referred to as your attorney.
There are two different types of LPA: Property and Affairs LPA and Health and Welfare LPA. Each type covers different decisions and there are separate application forms for each. You can choose to make both types, or just one. You can have the same attorney for both, or you can have different attorneys.
Property and affairs LPA
A Property and Affairs LPA covers decisions about your finances and property. If there comes a time when you can’t manage your finances anymore, the attorney will do this for you. This can include paying your bills, collecting your income and benefits, or selling your house. However, if you wish to, you can restrict their powers, or place conditions on what they can do. It can only be used once it has been registered at the Office of the Public Guardian (OPG). The OPG is responsible for the registration of LPAs (for more information see the ‘Office of the Public Guardian’ section in this factsheet). It can then be used even while you have good mental capacity to deal with these things yourself.
Health and welfare LPA
A Health and Welfare LPA allows the attorney to make decisions on your behalf about your health and welfare, if there comes a time when you are unable to make these decisions for yourself. A Health and Welfare attorney could make decisions about where you live, for example, or day-to-day care including what you eat and wear.
You can also give your Health and Welfare attorney the power to accept or refuse life-sustaining treatment on your behalf. You will be asked whether you wish to do this or not on the form, and you will need to state your intention clearly.
It’s important to be aware of the effect this decision can have on any advance decision that you have previously made. If you allow your attorney to make these treatment decisions for you, this will overrule any previous advance decision. If you choose not to give your attorney this power, your advance decision will still stand.
A Health and Welfare LPA can only be used once the form is registered at the OPG and you are in a position where you don’t have the mental capacity to make decisions about your own welfare.
Benefits of making an LPA
There are a number of reasons you may wish to make an LPA:
- It can be reassuring to know that, if you are unable to make a decision for yourself in the future, your chosen person will make these decisions for you.
- Making an LPA ensures that the person you want to make decisions for you will be able to do so. This prevents a stranger, or someone you may not trust, from having this power.
- An LPA can reduce problems that may occur in the future. It can be more expensive and time-consuming for family or friends to try to gain a similar power in the future.
- Making an LPA can help prompt discussions with your family or others about your future wishes.
Who can make an LPA
To make an LPA you must be over the age of 18. You must also have the mental capacity to make this decision. This means you are deciding for yourself that you wish to make the LPA, and you understand what this means.
Who can be an attorney
You can choose anyone you wish to be your attorney, as long as they are over 18. For a Property and Affairs LPA they cannot be bankrupt.
It’s important to think carefully about who you will appoint. Think about who you trust to make these decisions for you, and also whether the person is reliable and has the skills to carry out the role. You can choose to have more than one attorney.
Most people will choose a relative or close friend, but you can also ask a professional such as an accountant or solicitor. A professional may charge for their time, and you need to name an individual rather than an organisation or company. The person must also be willing and able to carry out the role.
You might also consider appointing a replacement attorney. A replacement attorney is the person who you would want to make decisions for you if your first choice attorney is no longer able or willing to be your attorney.
How an attorney acts
If you choose to have more than one attorney, you must decide how your attorneys will act. They can make decisions together (‘jointly’), they can act together and separately (‘jointly and severally’), or a combination of the two; these terms are explained further below:
- Jointly – this means that the attorneys must always act together, and therefore must agree all decisions and both sign documents.
- Jointly and severally – attorneys can act together, but can also act on their own.
- Jointly in respect of some matters and severally in respect of others – for certain decisions all your attorneys must agree, but for other decisions they can act independently. For example, selling property or decisions about medical treatment could be for all attorneys to agree, but for day-to-day decisions such as diet or dress they can act on their own.
When making decisions, your attorney must follow the Mental Capacity Act. This means that they:
- must act in your best interests
- must consider your past and present wishes
- cannot take advantage of you to benefit themselves
- must keep all of your money separate from their own.
If the attorney fails to comply, the LPA could be cancelled. If an attorney has taken advantage of you, this will be investigated by the OPG and the person could be prosecuted. Having an LPA in place can therefore offer you protection from potential future abuse.
How to make an LPA
To make an LPA you will need to complete an LPA form. There are separate forms for the two different types. You can choose to fill in a paper form, or do it online. Either way, the form needs to be printed, signed and sent to the OPG. Both include guidance notes which are extremely useful and should be read carefully.
Once you have completed the form, you will need to get someone to sign it to state that you have the mental capacity to make an LPA. This means you have the ability to make this decision; you understand what an LPA is and you made the decision yourself. The signed form is a ‘certificate of capacity’ and the person is called the certificate provider. They can be:
- a professional, such as your doctor, social worker or a solicitor
- someone who has known you for two years, but is independent, ie isn’t a family member or an attorney and they will not benefit from the LPA (there is more information about this in the guidance notes).
You also need to sign the form in front of a witness, and each attorney must sign the form to say that they agree to act as your attorney if needed in the future. They will also sign to show that they understand the duties this involves.
In addition, you are asked to list one or more ‘named person’. A named person is someone who you want to be alerted if there is an application to register the LPA. This could be almost anyone, for example a friend or relative can be your ‘named person’. The purpose of this is to provide you with an additional safeguard. If none are listed, an additional certificate of capacity must be provided.
Send the form to the Office of the Public Guardian. The form must be registered at the OPG before it can be used. There is a fee for registering each LPA, so if you are registering a Property and Affairs LPA and a Health and Welfare LPA, you will have to pay twice. You may be exempt from having to pay the fee if you cannot afford it. The OPG can advise you. For further information, click here
Office of the Public Guardian
The Office of the Public Guardian is responsible for the registration of LPAs, including dealing with objections and maintaining the register of LPAs. The OPG also has a contact centre where you can ask any questions, such as how to get an application form, or if you need help completing the form. See ‘Other useful organisations’ below for contact details.
The OPG will also deal with any issues (including complaints) about the way in which an attorney is exercising their powers. If there are any problems, the OPG may pass on the case to the Court of Protection, who can:
- decide whether a person has capacity to make particular decisions for themselves
- make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make these decisions, for example making a decision about where someone lives
- decide whether an LPA is valid
- remove attorneys who fail to carry out their duties
- hear cases concerning objections to register an LPA (someone may object to an LPA being registered if they feel that the person was forced into making it, or that the proposed attorney is not suitable).
Frequently asked questions
I already have an Enduring Power of Attorney; do I need to make an LPA as well?
Enduring Power of Attorney (EPA) was the previous system for assigning a power of attorney. This has now been replaced by LPA. You can no longer make an EPA, but any EPA made before October 1 2007 that was correctly filled in is still valid and can still be registered and used.
Therefore, if you have a valid EPA you don’t necessarily need to make an LPA. However, EPA only covers decisions about finances and property (like the Property and Affairs LPA) and does not cover health and welfare matters. Because of this, some people who have a valid EPA might make a Health and Welfare LPA as well.
If I complete the forms now, does it mean that I will no longer be able to make decisions for myself?
No. The purpose of the form is so that if you are unable to make decisions in the future, your attorney can make these decisions for you. It does not mean that from the moment you complete the forms your attorney takes over making decisions for you.
If you make a Health and Welfare LPA, your attorney cannot make decisions unless there comes a point where you cannot make these decisions for yourself. This is different for the property and affairs LPA, as for these types of decisions you can decide that you want your attorney to act while you still have capacity. In this instance, they wouldn’t be taking over from you, as you will also be able to act. It means that your attorney can help you manage your finances and you both have the power to act.
Do I need a solicitor?
You don’t have to seek legal advice, or use a solicitor. Many people find that they are able to complete the form without legal help.
But an LPA is a powerful and important legal document, and you may wish to seek advice from a legal adviser with experience of preparing them. There are likely to be costs involved. You may wish to look at the forms and read the guidance notes first and see how you feel.
What happens if I don’t make an LPA?
If you don’t make an LPA and become unable to make certain decisions for yourself, there may be a time when no one can do this for you, as no one will have the legal power to act on your behalf. This can make things like paying bills, including care fees, difficult, as well as making decisions about your future care.
In this case, someone may need to apply to the Court of Protection to become your Deputy. This can give them similar powers to that of an attorney. A relative or friend can apply to be your Deputy, or a professional may be appointed. The process of becoming a Deputy is a lot more time-consuming and expensive than an LPA. There are also ongoing requirements that a Deputy must fulfill such as paying an annual fee and also submitting an annual report, so it can be easier for someone to be an attorney rather than a Deputy.
Balance Consultancy and Lasting Powers of Attorney
We provide the service of drawing up LPA applications and dealing with the registration etc on your behalf.
Contact us on firstname.lastname@example.org to make an enquiry.
Refunds on LPA registration fees now available : go to https://www.gov.uk/power-of-attorney-refund