You’ve probably heard of ‘Lasting Powers of Attorney’, but you might not be too sure what they’re all about. In a nutshell, a Lasting Power of Attorney (LPA) means that if (and it’s a big if) you ever lose mental capacity in the future to make your own decisions, then you have given a person or people of your choice the legal authority to look after your financial affairs and/or health and care. It means no-one else is allowed to make decisions for you.
You may think an LPA is only necessary for elderly people – it isn’t. It’s a hard thing to contemplate, but someone of any age may become incapacitated through serious accident or illness and without an LPA in place, no-one is legally allowed to make decisions on their behalf, not even their children or spouse. Also, if you spend long periods of time abroad, you may wish to appoint an attorney to oversee and manage your financial affairs at home.
What is mental incapacity?
It is when you are unable to make a decision for yourself because something unfortunate has happened to you or you have developed an illness which robs you of the power to make decisions. It can occur in a variety of different circumstances:
- you have had a serious accident resulting in a brain injury
- you suffer from mental illness
- you are intoxicated
- you have developed an illness such as alzheimer’s or dementia
- you have reached a point where you are simply overwhelmed by all the complicated financial decisions that are often put in front of you
What is an Attorney?
An Attorney is someone who you have chosen to make decisions on your behalf. It does not need to be the same person who you have chosen as Executor in your Will as there are different responsibilities. Who you choose, and why, is a crucial part of the LPA process and needs careful consideration. You do not need to choose just one Attorney as you can appoint more than one Attorney to share the decision making responsibilities.
LPA – Financial Decisions
This can be used while you still have mental capacity. This concerns all decisions relating to any bank accounts, benefits, savings, tax, investments, household bills, credit cards, paying for care and running/selling your house, etc.
LPA – Health and Care Decisions
This can only be used if you no longer have mental capacity. Your attorney can take decisions relating to matters such as your level of care, where you live, consenting to or refusing medical treatment or life-sustaining treatment or even deciding what you wear or eat if necessary.
When to make an LPA
Most of us would probably associate LPAs with elderly people, however we would be wrong to assume this. Sadly, a life-changing event can occur at any time and even younger people can develop dementia early. If you don’t make an LPA when you are younger (and have capacity), it is simply too late to do so when you really need the LPA to take effect. No-one knows what the future holds and when.
If I make an LPA now, does that mean I’m transferring all decision-making before I need to?
No, absolutely not. The LPA only takes effect when you have registered it AND when (or if) you have lost your mental capacity. An LPA has to be registered with the Office of the Public Guardian (OPG) and a fee of £82 paid for it to be valid. If you wish, you do not need to register your LPA straightaway, but it must be signed, witnessed and dated in the right order, in order for you to register it when needed.
What does the LPA consist of?
It is a long form consisting of a minimum of 16 pages, all of which need to be carefully completed and dated in a particular order. You need to nominate your Attorneys, indicate how they are going to act, nominate people to notify (with a separate form), nominate Certificate Providers and then sign and have it witnessed. Your Attorneys also need to sign and be witnessed.
How and when does the LPA become valid?
When all the signatures have been collected and all the people notified, another form needs to be completed and sent to the OPG with the fee of £82. The OPG can take up to 6 weeks to register the LPA. If they discover any mistake, the LPA is returned and the process has to start all over again and another £82 paid. Once the LPA is returned to you with the official OPG stamp, you can forget about it until such future time it is needed.
Do I need both types of LPA?
No, but if you’re going through this longwinded process, you may feel you want to do both at the same time. However, the priority is probably the Financial Decisions LPA, particularly if you are younger.
What happens if I don’t have an LPA?
Apart from the emotional strain you family will be experiencing when you are losing mental capacity, without an LPA in place, there will be these additional pressures:
- you can’t access any bank accounts
- you can’t query any kind of household bill
- you can’t sell your home
- you can’t discuss any care or medical treatments with doctors or social services.
You can claw back this power by seeking ‘Deputyship’ by going to the Court of Protection with a doctor’s letter that mental capacity has been lost. This is costly, but more importantly, it can take a long time to secure.
So, how do I go about making a Lasting Power of Attorney?
You can do it yourself online at the OPG website or you can discuss it with a professionally trained expert such as a Will Writer or solicitor. Each LPA is 20 pages long and several signatures are involved, all to be made in black ink, witnessed and done in date order. The Registration process takes at least 10 weeks but at the end of that time, you should receive your LPA stamped and approved. You can then take it to your bank and surgery for them to photocopy so they have a record on your file.
To find out more about how to make a Lasting Power of Attorney, please contact Sally at info@valleywillwriting.co.uk
Valley Willwriting complies with the Institute of Professional Willwriters Code of Practice and is an approved Trusted Trader for Calderdale & Kirklees AgeUK
