Why should I make a Lasting Power of Attorney?
By making a Lasting Power of Attorney (LPA) you are able to choose who has the responsibility of looking after your affairs if you were to become incapable of doing so yourself. Having a LPA in place also gives you the opportunity to provide guidance on how you want your affairs managed if you were to become incapable of managing them yourself, physically or mentally, or a combination of the two.
What does lacking mental capacity mean?
An individual can lack mental capacity if they have an injury, disorder or condition that affects the way their mind works. People are considered to lack mental capacity if they have impairments that mean they are unable to make a specific decision.
How is mental capacity assessed?
Capacity assessments should be conducted if the individual in question is having difficulty understanding or making decisions. An individual may have capacity to make some decisions, but not others. A wide range of professionals could be involved in assessing capacity such as doctors, solicitors and social workers.
What happens if there is no Lasting Power of Attorney in place but an individual loses mental capacity?
A ‘deputyship’ is the fall back for someone who has lost the capacity to look after his or her own affairs, where no power of attorney exists. Deputies are appointed by the Court of Protection. For detailed information on this process and potential costs, please click on our news article here: https://u-planonline.co.uk/the-true-cost-of-not-having-a-lasting-power-of-attorney-in-place/
When does a Lasting Power of Attorney take effect?
A Lasting Power of Attorney (LPA) only takes effect once it has been registered with the Office of the Public Guardian (OPG). The document can be registered at any time, whether immediately after it has been completed (in which case it is simply stored safely and only put into use once it is needed) or at some time in the future when the need to use it actually arises.
Registration in itself does not mean that the individual in question has lost capacity. They can carry on making decisions in the usual way, despite registration, until such time as capacity is lost. The important thing to remember is that a LPA cannot be used at all until it is registered.
Who can I choose as my attorney?
Any individual who is over 18 can be an attorney. In respect of an attorney appointed to a Property & Financial Affairs LPA only, he or she must not be a bankrupt. When choosing your attorney or attorneys it is important to choose someone you trust implicitly to look after your affairs. This might be one or more members of your family, a trusted friend or a professional advisor.
If you appoint more than one attorney, attorneys can be appointed ‘jointly’ (in which case they must do everything together) or ‘jointly and severally’ ( in which case they can act individually or together) in relation to all issues. It is also possible to appoint a replacement attorney to act in place of your first named attorneys, if they become unable to act in the future.
What are the responsibilities of the attorney?
The attorneys powers will depend upon the type of Lasting Power of Attorney (LPA) that has been set up and whether any restrictions or controls on their power have been included in the document.
The attorney has numerous duties, in particular, an attorney must:
- make decisions that are in the donor’s best interests
- only make decisions that they are enabled to by the terms of the LPA
- not delegate powers they have been given to others, unless authorised to do so
- maintain the donor’s confidentiality
There are some duties and responsibilities that the attorney cannot carry out. For example, an attorney cannot:
- sign a Will on behalf of the donor
- act in circumstances in which their power is expressly limited or forbidden by the donor
- make gifts on the donor’s behalf except in limited circumstances
- make decisions that are not in the donor’s best interests
- make decisions using a Health and Welfare LPA unless the donor has lost mental capacity
- consent to the donor’s marriage or divorce
Can I cancel my Lasting Power of Attorney?
If you still have the mental capacity to do so, you can cancel your LPA. This needs to be done by way of a formal revocation and not by simply amending the original LPA, which is a deed once it is completed. If your attorney is a spouse or civil partner, a divorce, dissolution or annulment of the marriage or civil partnership will end their appointment, unless it has been expressly stated otherwise in the LPA.
What is an Enduring Lasting Power of Attorney?
Enduring Powers of Attorney (EPA’s), like a Property and Financial Affairs LPA, enables someone to make decisions on your behalf in relation to your property and financial affairs.
EPA has now been replaced by a Property and Financial Affairs LPA and it is no longer possible to set up a new EPA. If you have an EPA in place it can, however, still be used provided it was signed before October 2007. An EPA only needs to be registered at the Court of Protection if the donor has lost mental capacity.
