Creating a Lasting Power of Attorney
If you want your loved ones to make decisions on your behalf and follow your wishes, you should ensure that you make a lasting Power of Attorney.
Why create a Lasting Power of Attorney?
If you were to become unable to make decisions for yourself perhaps as a result of an accident, contracting an illness of simply as a result of old age, then without a Lasting Power of Attorney (LPA) in place, the only way your financial affairs can be managed is by an application being made to the Court of Protection.
If you want your loved ones to be able to care for you and make decisions on your behalf, you should ensure that you make a Lasting Power of Attorney whilst you are able to do so.
There are two types of Lasting Power of Attorney:
LPA for Property and Financial Affairs
Your Attorneys can make any decisions that you yourself can make about your property and affairs. They can buy or sell your property, manage your investments and can access your personal information. They can also pay your bills and manage your money on your behalf. They can arrange and collect your benefits and pensions.
Under this type of LPA your Attorneys can act before you lack capacity if you consent to them acting. You might want to authorise your Attorneys to be able to view your Will so that they can be aware, for instance, if you have left specific items to beneficiaries before they make any decisions about selling them.
LPA for Health and Welfare
Here your Attorneys can only act on your behalf once you lack the mental capacity to make a particular decision yourself.
Your Attorneys must help you to make as many of your own decisions as you can. They have a duty to act in your best interests and must follow the principles of the Mental Capacity Act and the Code of Practice. This is also the case with an LPA for property and financial affairs. The type of decisions your Attorneys can make for you include where you live, accessing your medical records, what you eat, how you spend your day, and who you see. They can also give or refuse consent to medical treatment according to what they believe is in your best interests.
If you want to, you can further authorise your Attorneys to be able to make decisions about whether or not you receive life-sustaining treatment.
Firstly, you need to decide who you wish to act as your Attorney(s). They have to be over 18, have mental capacity and not be bankrupt at the time they sign. The essential characteristic is that you trust them implicitly since they will be able to make a great many decisions on your behalf, including how your money is spent and sometimes selling your house.
You can include “instructions” in the LPA which your Attorneys are obliged to follow, and you can also provide them with “preferences” (guidance) if you wish, although preferences are not legally binding on your Attorneys. They can cover such things as on what occasions you would want them to take professional advice.
If you chose more than one Attorney, you must also choose if you want them to act:
Jointly – so they make all decisions together and sign all the paperwork. Bear in mind that getting unanimous agreement on all matters could take additional time and that the LPA would be invalid should one of the Attorneys become unable to act.
Jointly and severally – they can act together if they wish or separately. This can often be the more practical and flexible option should one of the Attorneys be busy or should one of them pass away.
Jointly in some matters but jointly and severally in others – this is a more unusual arrangement and will need to work in practice so that the Office of Public Guardian do not reject it as unworkable.
Registering your Lasting Power of Attorney
Before an LPA can be used, it must be signed and then registered with the Office of Public Guardian and you can choose if you would like people to be notified of the registration.
The LPA must be counter signed by an independent person, (known as the certificate provider) someone who:
- Has know you for at least two years or has the relevant professional skills required
- Is certain you have not been put under pressure to create the LPA
- Is certain you understand the significance of the LPA
You can choose to register the LPA immediately or wait until you think you need it. It takes several weeks for the registration to be complete (allowing for anyone to make and objection) so waiting until it is needed could result in serious delay during which no one could make any decisions on your behalf.
If you have any questions or would like more advice, please contact us.