There may be a time when you may need someone to help you manage your property and affairs or personal welfare. This could be due to age, ill health or a loss of capacity. From 1 October 2007, the only option for creating a Power of Attorney which covers mental incapacity is in the form of a Lasting Power of Attorney (LPA).
An LPA is a legal document that lets you (the Donor - also known as ‘the person giving this Lasting Power of Attorney’) choose a person/persons (Attorney/Attorneys) that you trust to make decisions on your behalf at a future time when you may not be able to make such decisions due to mental incapacity or simply no longer wish to make such decisions.
You can create two types of LPA:
- Property and Financial Affairs LPA
- Health and Welfare LPA
Neither of these documents have any legal standing until they have been registered with the Office of the Public Guardian.
Property & Financial Affairs LPA
This allows the Donor to appoint an Attorney to manage their finances and property. An appointed Attorney can make any decision the Donor could make about his or her property and affairs such as buying and selling property, managing investments, paying bills, collecting benefits or other income – unless restrictions are included to the contrary.
These are also useful documents for business owners who are sole traders, partners and also sole directors/shareholders.
Health & Welfare LPA
This allows the Donor to appoint an Attorney to make decisions about personal welfare. This document can only be used when the Donor has lost mental capacity. Unless restrictions are included, the Attorney can do anything the Donor would have done regarding personal welfare, for example:
- Where you should live and who with
- Day to day care
- Consenting and refusing medical treatment
- Arranging treatments such as dentists, doctors etc
- Life sustaining treatment decisions can also be given to the Attorney, but only if the Donor directs
Who Can Make An LPA?
Anyone aged 18 years or over with capacity.
Who Can Act As My Attorney(s)?
Anyone can be appointed as a person’s Attorney so long as they are over the age of 18 years, have capacity and are not bankrupt. You can appoint more than one person to act. If you choose to appoint more than one then you have to decide how to appoint them. You can also appoint a substitute just in case something happens to an Attorney in your lifetime.
Attorneys should be trustworthy and have a duty to act in your best interests and consider your needs and wishes so far as this is possible.
What Happens If I Don’t Have An LPA?
If you lose the capacity to be able to manage your affairs for whatever reason without a valid LPA then your personal affairs will become the responsibility of the Office of the Public Guardian. In these cases a person’s affairs are placed under the jurisdiction of the Court who appoints a Deputy to act on your behalf and the Deputy is therefore answerable to the Court.
This can be an expensive route as Court approval is required for any act to be carried out, accounts have to be submitted to the Court every 12 months and financial decisions are not carried out by close family or friends.
Do I Need To Seek Legal Advice?
You do not have to seek legal advice – it is your choice. We do consider, however, that an LPA is a powerful and important document and it is far more complex then the previous Enduring Power of Attorney system. We would recommend that anyone considering completing an LPA should seek appropriate professional advice.