A Lasting Power of Attorney is a legal document that you can set up (given enough time) to allow your husband, wife, children or friend to make decisions for you under certain circumstances. Typically, that would be if you are unable to (maybe after Covid, or an accident, stroke you were in a coma ), or if you wished to delegate some or all decisions as you no longer wished to be bothered.
Many Lasting Powers of Attorney, in our opinion, are set up wrongly. Accidents and strokes etc can happen at any age, so ideally, LPAs should be an 18th birthday present and reviewed every couple of years. Many people also only have one, and not both, and that can be disastrous both personally and financially.
What are the different types of Lasting Power of Attorney?
In England and Wales, there are several types of Power of Attorney, so you understand how Lasting Powers of Attorney fit in, and whether or not they are needed.
- General Power of Attorney – these are generally used in the short term. For example, you might be buying a house, but are away for a long holiday. Your lawyer might well get you to sign a General Power of Attorney so they could sign (as an attorney for you) and exchange contracts on your behalf while you were away. Or maybe you can’t easily get to the bank. If you were not mentally competent to make the decision, the General Power of Attorney would be useless.
- Medical Directive: these cover specifically medical matters only. For example, a Jehovah’s Witness might well have one confirming an absolute refusal to have a blood transfusion.
- Enduring Power of Attorney (EPA). As long as it was signed before 1st October 2007, these were the predecessors to the Property & Financial Affairs Lasting Power of Attorney. You could appoint 1 or more people to act as financial attorney for you under circumstances you decide when making the EPA. They are still potentially valid, but were usually set up to be used only when Mental Capacity has been lost, at which point they need to be registered with the Office of the Public Guardian. If they are not restricted to use only when mental capacity has been lost, then they can act as a General Power of Attorney beforehand, with your permission (or potentially without if you don’t have them stored, for example, by our Peace of Mind Service.
- Lasting Power of Attorney Property and Financial Affairs (Finance LPA): the modern version of the Enduring Power of Attorney, and much more widely recognised these days. In essence, they cover pretty much every type of financial or property-related decision (with one major hitch). They are very tricky documents, and they have no legal validity until they have been registered by the Office of the Public Guardian. If you are planning to be seriously ill or have an accident allow, at the very least, 3 months to get Lasting Powers of Attorney in place!
What is the problem with Finance LPAs?
They don’t cover Welfare matters, so whilst they will allow you to pay (for example) Care Home Fees – your family attorneys will have NO CHOICE over which care home you are put in – that will be decided by Social Services. If the family don’t agree – TOUGH – unless you have set up:
- Health and Welfare Lasting Power of Attorney: these do what they say, allow you to appoint attorneys to look after your health and welfare. Unlike the Finance LPA, there is no option to allow them to be used except when you are unable to make decisions yourself within a reasonable time considering the urgency of that decision.
There are a number of reasons why you might need someone to make decisions for you or act on your behalf:
- This could just be a temporary situation: for example, if you’re in a hospital and need help with everyday tasks such as paying bills.
- You may need to make longer-term plans if, for example, you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future.
What is mental capacity?
Mental capacity is the ability to make and communicate specific decisions at the time they need to be made. To have mental capacity you need to understand the decision you need to make, why you need to make it, and the likely outcome of your decision. If you need help to fully understand, your attorneys would be required to make all reasonable efforts to help you make your own decisions – unless you don’t wish to. And your decisions don’t have to be wise in the eyes of your attorneys!
Some people will be able to make decisions about some matters 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. The ability to make decisions may change from day to day, and from time to time during the day – attorneys need patience if they are to act correctly.
Needing more time to understand or communicate doesn’t mean you lack mental capacity. A diagnosis of dementia doesn’t automatically mean that they can’t make any decisions for themselves. When someone is having difficulty communicating a decision, serious attempts should always be made to overcome those difficulties and help the person decide for themselves.
What if I don’t have a Lasting Power of Attorney?
If you lose the mental capacity to make or communicate your own decisions before setting up a power of attorney, the Court of Protection may become involved. That is a slow, expensive process with results in a Judge appointing a person to make decisions on your behalf. That may be a solicitor (who will charge you for the time) or if the family is united, maybe a family member. That person will need to complete regular reports, buy special insurance and pay (all out of your savings) for Court of Protection supervision. Best avoided by contacting us today to put Lasting Powers of Attorney in place. Whilst we are based near Eastbourne in Sussex, we can assist anywhere in England and Wales, usually without the need for a face to face meeting.
How do I make a Lasting Power of Attorney?
You can make an LPA online or using paper forms. Either way, you need to get other people to sign the forms, including the attorneys and witnesses. You can get someone else to use the online service or fill in the paper forms for you, for example, a family member, friend or solicitor. Some people do it all themselves without advice, but these are such complex documents with such massive repercussions if they are not properly thought through and correctly set up. There is much more to setting up an LPA than just filling in a form.
Mental Capacity to Make a Lasting Power of Attorney:
Mental capacity is your ability to make decisions for yourself. When making an LPA, that needs to be backed up by someone called a Certificate Provider who confirms that you do have the mental capacity to set up an LPA.
But mental capacity is not necessarily something that you have or you don’t have. You may be able to reason and to make decisions perfectly well about some matters, such as how your finances should be managed, but not about other things, such as where you would like to live.
You can also be mentally capable at certain times of the day, but not at others.
Having mental capacity is not a simple YES or NO matter. Loss of mental capacity regarding certain matters might be the reason that you seek a diagnosis for dementia, but having dementia might not prevent you from making an LPA.
Of course, it is best if you plan as early as possible for serious illness, accident or care – I believe one in 9 of us suffer from a mental illness during life.
The Mental Capacity Act outlines five key principles and provides an assessment framework referred to as The Two Stage Test. The first step: do you have any general impairment that affects your ability to make a decision, such as dementia?
- If you have an impairment, then the second stage is to check the following for a particular type of decision:
- Comprehension: can you understand relevant information relating to the decision.
- Memory: can you can remember the information for the duration of the decision-making process.
- Judgment: can you can weigh up and use relevant information to make a decision.
- Communication: can you can communicate your decision, either verbally or non-verbally.
If you have these four attributes for a particular decision, then you have mental capacity to make that decision.
Lasting Powers of Attorney enables you to decide, in advance, whom you would like to manage your finances (a Property and Affairs LPA) and your personal health and welfare affairs. The Health and Welfare LPA includes where you live, as well as who should look after your children should you lose the ability to do so. The people you appoint become your Attorneys. Why not contact us with any questions!
STOP PRESS – don’t leave it too late – March 2022.
The England and Wales Office of the Public Guardian (OPG) has announced that it is currently experiencing delays registering lasting powers of attorney (LPAs). Amending the average registration time of 15 weeks, it now asks that applicants allow up to 20 weeks from receipt of the signed LPA for an application to be processed. This includes a four-week waiting period required by law. This assumes that they accept everything is perfect and no “i” is undotted or “t” uncrossed or date incorrectly written. We believe that it is crucial LPA are prepared AND registered at the earliest possible moment, due to the immense delays and the high possibility of rejection, which could leave applying for Deputyship as the only (slow, expensive and uncertain) way to attempt to look after a family member. In the Eastbourne, Polegate, Hailsham area we can set these up face to face, if your wish, in other areas we offer are normal post and phone service, with video meetings for those it suits.
What Happens If I Don’t Have Lasting Powers Of Attorney?
If you have an accident, stroke or other sudden disability and don’t have a Lasting Power of Attorney, your family will be powerless. Someone will have to apply to the Court of Protection to be appointed as your “Deputy” to manage your affairs. Very often, it is Social Services who do so and charge for the time and the ongoing service as they will now have total access to your funds.
If you have a quarrelsome family who each appoint lawyers to fight for control, then the bill will be multiplied – and all taken from your assets! That is likely to take at least 6 months and could cost many thousands. Until the Deputyship order is granted by the Court, joint bank accounts and anything in your name will be inaccessible to those trying to help you.
The Deputy will be under the supervision of the Court through the Office of the Public Guardian. This is clearly much more expensive and less satisfactory than choosing you own family attorneys in advance. If you are unlucky, you may be paying for a solicitor to manage your life for you at great cost.
There are two sorts of Lasting Powers of Attorney:
- Powers of Attorney Property and Affairs – essentially dealing with Financial matters.
- Lasting Power of Attorney Health and Welfare – medical and welfare matters – such as where you live.
So how do I get a Lasting Power of Attorney?
Call us! We don’t claim to be the cheapest (though we are very reasonable) but we were learning about LPAs before they even came into force, and we haven’t stopped learning since.
For some reason, many also seem not to appreciate the importance of the Lasting Power of Attorney Health and Welfare. Very, very few carry out regular training and updating on Lasting Power of Attorney. Once again, solicitors who specialise in this area can be absolutely superb.
What We Offer:
- We offer fixed fees and make it as simple as possible to organise your Lasting Power of Attorney.
- We really do care about making sure you do the best job you possibly can for your family and business. Yes, without sound Legal Planning, families or businesses can be in dire straits.
- We offer an ongoing service to help you ensure your Lasting Power of Attorney stays up to date and relevant as personal circumstances (yours and the family) change. As taxes change and as the Law changes. Does any other adviser offer that?
- We do NOT push ourselves on you as Attorneys.
- We are fully Regulated by the Society of Will Writers and Estate Planning Practitioners and have full professional indemnity insurance for £2,500,000.
Why not call us on 0800 298 5208 – or email us here
Lasting Powers of Attorney
To contact Allied Professional Will Writers, call 01323 741200 or use the form here.
Principles of the Mental Capacity Act:
- Assume that the person has mental capacity unless proved otherwise.
- Do not treat people as being incapable of making a decision unless all practicable methods of helping them to reach one have been tried.
- A person should not be treated as unable to make a decision just because the decision may seem unwise.
- Always do things or make decisions for the person without capacity in their best interests.
- Before making a decision, consider if it could be made in a way that would be less restrictive for the person without mental capacity.
The parties involved in making Lasting Powers of Attorney are:
The DONOR – the person whose the LPA is for.
The ATTORNEYS – the people who will make decisions when the donor is unable to.
The CERTIFICATE PROVIDER who witnesses the donor signature and then confirms that the donor has the mental capacity to make the