Lasting Power of Attorney (LPA)
What would happen if I lost mental capacity and did not have a lasting power of attorney in place?
by Kidd Rapinet, February 1, 2022If you lost mental capacity and did not have either a Lasting Power of...
Lasting Power of Attorney
Solicitors
What is a Lasting Power Of Attorney (LPA)?
A Lasting Power of Attorney is a legal document that you (the donor) can use to appoint an individual or individuals (your Attorneys) to manage your affairs, or to help you manage them if you should have difficulty doing so.
How does a lasting Power of Attorney work?
A lasting Power of Attorney (LPA) is designed to give you control over what happens to your affairs should you have difficulty making decisions or are incapable of doing so. For example if:-
- As a result of illness or an accident, you become mentally and/or physically incapable of dealing with certain matters, like making decisions or dealing with paperwork;
- You are living abroad for an extended period and need someone at home to manage some of your affairs whilst you are away.
We’ve put together a few commonly asked questions to help.
Sadly, mental incapacity can affect anyone – it can be the result of an accident or long-term illness and can have devastating effects for families trying to manage the health, welfare and finances of a loved one without legal authority.
Our LPA Solicitors encourage everyone over the aged of 18 to make a Lasting Power of Attorney – especially if they have dependents, a large number of assets or a business.
People often seek advice from a Lasting Power of Attorney Solicitor if they believe they might lose the ability to manage their own affairs, for example, if they are diagnosed with a potentially debilitating illness, or are elderly and at risk of age-related incapacity. However, you do not need a specific reason to make an LPA – it’s a good idea to plan ahead to ensure that you are in control of what happens to you in the future and who makes decisions on your behalf.
Generally, people appoint a close relative, a friend or a professional such as a solicitor or an accountant. Your Attorney must be aged 18 or over and have the mental capacity to make their own decisions. It is important you appoint someone you trust completely to act in your best interests. Your Attorney does not need to be a British citizen or live in the UK though for practical purposes, it may be more convenient if they are local to you.
You can appoint just one Attorney though it may be better to appoint at least two. If you do this, you need to decide if they will make decisions:
- Together (also know as “jointly”) – Your Attorneys must make all decisions together. They can only make decisions if they all agree, so difficulties may arise if the attorneys fall out with each other. In addition, if one were to die and your LPA made no provision for appointing a replacement, your LPA would become ineffective;
- Separately or together (also known as “jointly and severally”) – Your Attorneys can make decisions together or on their own. This is the most practical arrangement. If one of your attorneys were temporarily or permanently unable to act, then the remaining Attorney could continue acting by themselves.
- Together for some decisions and separately for others – As above, if your Attorneys cannot agree on matters that are to be decided together, this could result in no decision being taken on those matters.
In any event, you can nominate other people to replace your Attorney(s) in the event they become permanently unable to act for you.
It is possible to create a Health and Welfare LPA and a Financial LPA yourself, however, both documents will contain particularly important information and it is advisable to seek professional advice and support from an LPA lawyer.
Our LPA lawyers are situated throughout Berkshire, Buckinghamshire, Surrey and London – we offer no obligation consultations so please do get in touch to discuss a Lasting Power of Attorney.
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Types of LPA
There are two main types of Lasting Power of Attorney (LPA). Health and Welfare LPA and Property & Financial Affairs LPA. We explain more on each below.
A Health and Welfare LPA
A Health and Welfare LPA gives your Attorney/s the power to make decisions relating to your health and wellbeing, such as:
- Your daily routine including washing and dressing;
- Your diet, if you are unable to shop and cook for yourself;
- What type of personal care and/or medical care you receive; and
- Whether you continue living in your own home or move into a care home or nursing home.
You also have the option of giving your Attorney the power to make decisions regarding medical matters including:
- Having an operation;
- Receiving treatment for serious diseases like cancer;
- Palliative care; and
- Whether and in what circumstances life-sustaining treatment for you should be refused.
It is advisable to discuss these matters with your family or chosen Attorney/s to ensure they understand how you feel and the decisions you would like to make. Once this document is registered, your Attorney is only allowed to use their powers once you have lost the capacity to make your own decisions.
A Property and Financial affairs LPA
A property and financial affairs LPA gives your Attorney/s the power to make decisions relating to your property and financial affairs. This document can be created to suit your requirements and you able to put restrictions on the powers that you grant your Attorney/s. Your Attorneys can make a number of decisions, including:
- Managing your bank and building society accounts;
- Paying your bills;
- Managing your investments and/or making new investments on your behalf;
- Running your business;
- Selling your home or other property if necessary; and
- Dealing with your tax affairs.
If you have a business or investments you may want to consider a number of attorney/s each experienced in different fields. Once you have made the LPA and registered it with the Office of the Public Guardian, your Attorney/s can, with your consent, start dealing with financial and property matters on your behalf. They do not have to wait until you have lost the capacity to manage your affairs before assisting you but this will only happen if that is your wish – whilst you have mental capacity they cannot use the LPA without your permission.
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“It wasn’t until my husband had a stroke and I was unable to manage his affairs I realised how important an LPA was. Fortunately, he made a full recovery and Kidd Rapinet helped us create LPA’s for the future. It’s comforting to know we have everything in hand. We would highly recommend everyone has an LPA. You just never know what is around the corner.”
S Jones, Farnham.