In general terms, a power of attorney is a document enabling a person (the “donor”) to appoint some other person (the “attorney”) to make decisions on behalf of the donor. The attorney can be given virtually the same powers as the donor has over his own affairs. Generally speaking, the attorney’s power ceases if the donor loses mental capacity or dies.
An LPA is “lasting” because it continues even if the donor loses mental capacity.
There are two types of LPA. Firstly, there is a “property and financial affairs” LPA, which gives the attorney powers in relation to the donor’s finances etc. This type of LPA can take effect as soon as it has been completed and registered. Secondly, there is a “health and welfare” LPA, giving power in relation to medical and care decisions. This type of LPA only takes effect when it has been completed and registered and the donor has lost mental capacity in relation to a particular decision. You can also use a “living will” – an entirely separate document – to specify what you wish to happen if you cannot communicate with your doctors, but a “health and welfare” LPA can allow someone else to deal with day to day decisions on a long-term basis.
Why should I make an LPA? What happens if I don’t?
If, at some point in the future, you lack the mental capacity to make a particular decision, an attorney appointed by you in an LPA will be able to take action in your best interests. If you do not have an attorney, the only alternative is an application to the Court of Protection for the appointment of a “deputy”. The initial and ongoing costs relating to deputyship often run to thousands of pounds. You do not have control over who is appointed as your deputy (although it would normally be someone from among friends and family), and the application to the Court can be complex and time-consuming.
Making an LPA gives you control over the question of who is to look after your finances and/or welfare if you become unable to make decisions for yourself. It is significantly more economical – in both cost and time – than leaving a deputy to be appointed, and it will ease the burden on you and your friends and family if you do need to be looked after in the future.
Making an LPA
The first step is to have some idea about whom you may wish to appoint as your attorney(s). You can appoint more than one, and you can place restrictions on individual attorneys’ powers if you wish. You also need to consider whether you wish to make a “health and welfare” LPA, or just a “property and financial affairs” LPA.
The form that must be completed to create an LPA is quite lengthy and complicated. We would always advocate our clients seeking specialist legal advice with regard to the various options that must be considered. If you are interested in making an LPA, we can put you in contact with a local legal specialist in this area of planning who we would trust to act in your best interests.