A lasting power of attorney is a critical legal provision that enables you to designate someone to take charge of your affairs if you lose the capacity to do so. This guide succinctly explains the types of LPAs available, provides a step-by-step process for creating one, and illustrates the protections it affords, ensuring you can make informed decisions about your future.
An LPA allows individuals to appoint attorneys to make decisions on their behalf in the event of mental incapacitation, aiding in the management of financial affairs and personal welfare, through two distinct types – Property and Financial Affairs LPA and Health and Welfare LPA.
Setting up an LPA involves choosing trustworthy attorneys, completing and registering the necessary forms with the Office of the Public Guardian, and may incur a registration fee, with a waiting period for the process to be completed.
Safeguards are in place to protect against LPA misuse, which includes verifications by an impartial figure, notifications to certain individuals during registration, and the right to contact the Court of Protection in case of suspected abuse or the need to revoke or amend the LPA.
Understanding Lasting Power of Attorney (LPA)
The Lasting Power of Attorney (LPA) serves as a potent legal instrument. It enables you to:
Designate one or more individuals as attorneys to make decisions for you in case you become mentally incapacitated, including handling your financial affairs lasting power
Retain control over your life even in the face of incapacitation
Avert potential delays and complexities associated with court-appointed guardianship
Its significance lies in its ability to provide a safety net and ensure that your wishes are carried out through an online service.
An LPA operates by endowing your selected attorneys with the legal authority to decide on your behalf, thereby ensuring uninterrupted administration of your affairs. The necessity for an LPA arises when you’re at risk of losing mental capacity due to illness or injury, or when you’re unable to make certain decisions for yourself. To cover different aspects of life, you can establish a financial affairs LPA and a health and welfare LPA.
The Two Types of LPA
Navigating the world of LPAs, you will encounter two types: Property and Financial Affairs LPA, and Health and Welfare LPA. The former gives your attorney the authority to oversee your finances and property if you lose mental capacity, while the latter allows your attorney to make decisions about your daily routine, medical care, and life-sustaining treatment, but only when you can’t make these decisions for yourself. It’s crucial to understand the differences between financial affairs LPA health and welfare LPA to ensure your needs are met.
Interestingly, the same individual would usually make both types of LPAs. This means that each type of LPA could potentially be activated at different times depending on specific events or the onset of mental incapacity relevant to each LPA’s area of authority.
Mental Capacity and LPA
Establishing an LPA heavily relies on mental capacity. It refers to your ability to make well-informed decisions about your life, and if you need help understanding this or the LPA process, professional help is available. Having mental capacity is essential for the donor to establish the LPA, enabling the appointed attorney(s) to act in the best interest of the donor.
A thorough mental capacity assessment is carried out to ascertain your ability to appoint an attorney for a Lasting Power of Attorney, especially when it comes to making health and care decisions on your behalf.
Setting Up a Lasting Power of Attorney
Initiating the process to set up an LPA starts with the selection of your attorneys and other individuals who will participate in the process. It’s crucial to select someone you trust, whether it’s a family member, friend, or professional.
Once you’ve chosen your attorneys, you can instruct a professional to assist you in establishing an LPA. The forms and an information pack can be downloaded from the Office of the Public Guardian’s website, or you can create an LPA online, but these are critically important documents and professional help is strongly recommended.
After completing the LPA forms, the next step is to sign them and submit them to the Office of the Public Guardian. Remember to include the original form and the required registration fee. If the LPA form was created online, it should be printed out before submission.
Choosing Your Attorneys
Selecting your attorneys marks a pivotal stage in establishing an LPA. It’s important to select individuals who are trustworthy, understand your beliefs, and can act in your best interests. Collaboration among the attorneys is also essential, as they need to act jointly.
While there is no specific legal limit, it’s typical to appoint between one and four attorneys for practical purposes and to facilitate manageable decision-making. This allows for a robust system of checks and balances, reducing the risk of potential misuse of your LPA.
Registering Your LPA
After diligently selecting your attorneys and completing the requisite forms, you can proceed to register your LPA. The cost associated with registering an LPA is £82 per form. If you’re registering both types of LPA – for property and financial affairs and health and welfare – the total cost would be £164, unless you qualify for a fee reduction or exemption.
Keep in mind that registering an LPA isn’t an instantaneous process. The waiting period can extend up to 20 weeks or longer. During this period, objections can be raised, and the Office of the Public Guardian provides specific procedures to follow in such cases.
Legal Advice and Assistance
Although setting up an LPA independently is feasible, obtaining professional advice is strongly recommended. A professional adviser can guide you through the process of establishing and registering an LPA, ensuring legal compliance and safeguarding your best interests. They can help you avoid common errors such as providing contradictory instructions, overlooking the consideration of replacement attorneys, and neglecting to inform relevant parties.
Professionals can provide invaluable assistance in:
Choosing the right type of LPA, taking into account factors such as responsibility, willingness, trust, and alignment with personal values
Offering insight into the various types of LPAs available
Assisting you in making informed decisions
Managing Finances and Property with an LPA
Upon registering and activating an LPA for property and financial affairs, your attorney gains the ability to handle your finances and make crucial decisions in your stead. They can:
Oversee your financial affairs
Administer bank and building society accounts.
However, it’s important to remember that your attorney must adhere to certain restrictions. They are required to:
Keep your finances separate from their own
Obtain approval from the Court of Protection for larger gifts
Only access and manage your financial accounts when the LPA is registered and activated, granting them the necessary legal authority.
Health and Welfare Decisions under an LPA
Contrary to the LPA for property and financial affairs, a health and welfare LPA only comes into play when decision-making about your daily routine, medical care, and life-sustaining treatment becomes impossible for you. Your attorney can make decisions concerning your daily routine, including activities like washing, dressing, and eating, with the welfare lasting power granted by the health and welfare LPA.
It’s noteworthy that a health and welfare LPA only comes into effect when you’re unable to make your own decisions. This means that even after registering this LPA, your attorney cannot make decisions on your behalf until you’re no longer capable of doing so.
Safeguards and Protection
Setting up an LPA does not imply abandonment to the whims of your attorneys. Measures are in place to prevent misuse of your LPA, such as mandating an impartial individual to verify your comprehension and absence of coercion, and allowing specific individuals to be notified upon LPA registration.
In cases of suspected misuse, the Court of Protection can take the following actions:
Cancel the LPA
Freeze your assets
Arrange for a new attorney to be appointed
Refer the matter to the Court of Protection
If you suspect misuse of your LPA, you can contact the Office of the Public Guardian or seek assistance from local citizens advice.
Revoking or Amending an LPA
Life is subject to change, much like our relationships and circumstances. If changes become necessary, such as adding another attorney, the recommended route is to revoke the existing LPA and create a new one.
Revoking an LPA requires the following steps:
Draft a deed of revocation.
Submit the deed of revocation to the Office of the Public Guardian along with the original LPA document.
Notify your attorney or attorneys about the revocation.
Enduring Power of Attorney (EPA) vs Lasting Power of Attorney (LPA)
While an LPA is modern and recommended, it doesn’t stand alone in its category. You may have heard of an Enduring Power of Attorney (EPA). One key difference is that an EPA takes effect immediately upon signing, whereas an LPA only becomes effective upon registration and activation.
The scope of an EPA is limited to property and financial matters and does not encompass healthcare-related decisions. In contrast, LPAs can offer more comprehensive coverage, including medical care and life-sustaining treatment. Despite these differences, both an EPA, which must have been established before October 1, 2007 and an LPA can be in effect concurrently, provided they fulfil their individual activation criteria.
In conclusion, a Lasting Power of Attorney is a legal safety net that allows you to retain control over your life, even in uncertain circumstances. From understanding the two types of LPA, setting one up, and managing finances and health decisions to ensuring safeguards and protections, this guide has covered all you need to know about establishing an LPA. Remember, an LPA isn’t just for the elderly or those with a serious illness. It’s for anyone who wants to ensure their voice is heard, no matter what life throws their way.
Frequently Asked Questions
What is the difference between Lasting Power of Attorney and Enduring Power of Attorney?
The main difference between an Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA) is that the holder of an LPA can make life-changing decisions on behalf of the mentally incapable person, while the attorney under an EPA cannot decide where the donor should live. This means an LPA can grant broader decision-making authority compared to an EPA.
What are the two types of Lasting Power of Attorney?
The two types of Lasting Power of Attorney (LPA) are a health and welfare LPA and a property and financial affairs LPA. Each type serves different purposes.
Do I need a professional to make a Lasting Power of Attorney?
It is not necessary to use a professional to create a Lasting Power of Attorney, but it could prevent future issues, especially if you are unsure of the process or have complex affairs. Professional advice is worth the extra expense for reassurance in such important matters.
What is the significance of a Lasting Power of Attorney?
The significance of a Lasting Power of Attorney lies in its ability to allow individuals to appoint trusted individuals to manage their affairs in the event of their incapacity. This provides a crucial safeguard for ensuring that their wishes are upheld.
What attributes should one consider when selecting an attorney for their LPA?
When selecting an attorney for your LPA, consider their trustworthiness, understanding of your beliefs and perspectives, honesty, and reliability. These attributes are crucial for a successful LPA.