Should I make a Lasting Power of Attorney?
What would happen if you lost your ability to make your own decisions, perhaps due to a condition such as dementia?
- Your relatives may struggle to access and manage your finances for you. Banks have many stringent security controls and requirements which can make it very difficult to access a relative’s accounts – even for spouses. A quagmire of bureaucratic requirements can make it very difficult to manage the financial affairs of a relative and getting access to do so will often involve lengthy Court procedures. This could even leave your relatives out of pocket if you require expensive medical care.
- You would lose control over your place of dwelling and your relatives could struggle to act for you. Should you ever require full-time medical care or supervision yet lack capacity, your relatives may again face lengthy court procedures in order to help you move home. Should you need to sell your home – to pay for medical costs or accommodation, for instance – you will be deemed unable to consent to the sale and your relatives will likely face protracted legal difficulties before they can act for you. This could mean more time spent living alone or with relatives before you can receive the care you needed.
- You may be unable to consent to medical treatment . Your consent is also required for basic day-to-day care, such as washing and dressing you. Should you be unable to consent to urgent care, and your family remains unable to consent on your behalf, you may even be sectioned under the Mental Health Act. This is obviously an extremely stressful solution for all involved.
Appointing a trusted individual to act on your behalf should you ever lose capacity would prevent all of the above situations.
What is an LPA? Do I need one in place?
An LPA – a ‘Lasting Power of Attorney’ – can protect you when you are too vulnerable to act for yourself. Essentially, an LPA is a legally binding document which appoints a trusted relative or friend as an ‘Attorney’ and specifies how they may act for you. Once it is in place they are legally bound to act in your best interests. Whilst a Will protects your assets and wishes after death, an LPA can protect you should you ever be faced with a life-limiting illness which would cause you to lose your legal capacity.
What is my Capacity?
Your capacity is your ability to make informed, intelligent decisions, the nature and consequences of which you understand fully. As defined by the Mental Health Capacity Act 2005, ‘lacking capacity’ means that you have mental health issues which make it difficult for you to make a certain decision, or a type of decision, at a particular time.
Your capacity can be assessed by any medical professional. Your solicitor will also make an assessment of your capacity before making any legal decisions if they think it is pertinent.
How often will I need to make a Lasting Power of Attorney? Will it last for the remainder of my life?
Your Lasting Power of Attorney will last for the remainder of your lifetime (hence the “Lasting” bit). However, you may need to update your LPA if your circumstances change. In the event that your Attorney is no longer able to act for you for any reason, or you decide you would like to appoint someone else, you will need to revoke the LPA and make a new one. Provided you do not lack capacity, your solicitor will be able to help you revoke your LPA or to appoint a different person as your Attorney.
How do I make An LPA?
Before speaking with your solicitor, you will need to decide which kind of decisions you would like your Attorney to make for you. There are two types of LPA:
- Financial and property
- Health and welfare
Once you have decided who to appoint and what decisions they will be able to make, your solicitor will give you the relevant forms to fill in. This form will then be witnessed and executed as a deed. Your Attorney will also sign a statement to confirm that they understand their duties and swear to act in your best interests. Once the LPA is ready it will registered with the Office of the Public Guardian, at which point it will be legally binding. Remember – should you wish to make any changes to your LPA you will need to contact your solicitor as soon as possible.
You may also want to consider a Living Will.