Powers of Attorney
Lasting Powers of Attorney
Do I need a lasting power of attorney (‘LPA’)?
Everyone should consider putting in place LPAs to make sure that if you lose capacity to make your own decisions, others can make them for you.
If you don’t have a valid LPA and lose capacity, normally your loved ones would need to apply to court for a deputyship order to be able to manage your affairs. This can be an expensive and time consuming exercise, and the people that the court choose to act on your behalf might not be those that you would have chosen yourself!
Many people also create an LPA to allow others to make decisions for them, not because they have lost capacity, but because it is difficult perhaps for them to get out of the house or if they find it all “a bit too much”.
I’ve already got an enduring power of attorney (‘EPA’), is that enough?
Provided that your EPA was validly created and the individuals that you have appointed in it are still the people that you would want to be able to make decisions for you then it may be.
You might also want to create an LPA for health and welfare though so that you can choose people to make decisions about medical treatment and /or where you live (amongst other decisions) for you. When EPAs were created there was no option to create a health and welfare power of attorney so this is something additional that you might want to consider.
Can you tell me some more about LPAs?
There are two kinds of Lasting Power of Attorney that can be created:
- Property and financial affairs
- Health and welfare
Both kinds of LPA have to be registered before they can be used. The registration process normally takes around 2 months but can be longer if the body that registers them (the Office of the Public Guardian) have a backlog.
We recommend registering LPAs as soon as they are created, this is due to the time that it takes to register an LPA and to guard against unforeseen circumstances causing you to lose capacity very quickly (for example a non-fatal accident or a stroke).
Property and financial affairs LPA
The property and financial affairs LPA (LPA PFA) covers decisions such as the selling of assets (including your home), paying your bills and managing your bank accounts. This document can be used both while you have capacity and if you lose mental capacity to make those decisions for yourself.
Although you may have allowed others to access your bank account on your behalf whilst you have mental capacity, if you were to lose mental capacity that authority does not endure and so anyone accessing your accounts at that point would be doing so unlawfully.
In the event of a house sale (or another transaction) whilst you do not have capacity either a valid registered LPA PFA would be required or your loved ones would need to apply to the courts for a deputyship order to manage your financial affairs for you. It is possible that the individuals that apply would not be those that you would choose to appoint as your attorneys. A deputyship order application is generally a lot more expensive than creating an LPA PFA.
Health and Welfare LPA
The health and welfare LPA (LPA HW) can only be used if you do not have capacity. It covers decisions about such matters as life sustaining treatment, where you live, what you eat and who you see.
You may need an LPA HW if, for example, you have a fall at home causing you to lose capacity and need hospital treatment, whilst in hospital the medical and social services professionals assess that you are unsafe to return to your home and require nursing care. If you do not have an LPA HW your family members may not have the authority to decide where you live, even if you will be funding the care from your own assets. Although the healthcare professionals would normally take account of your loved ones’ wishes, they may not have the resources to follow those wishes and may decide that you should be placed in nursing accommodation that you would not have chosen for yourself.
Can you help me to create LPAs?
We would be very happy to assist you in setting up your LPAs. Please call Alice-Ogilvie Smals on 01926 422101 or 02476 229582 for more information.
The Court of Protection
This option is used if someone becomes mentally incapacitated. The court may then choose someone to manage the person’s finances for them (this may be a close friend or relative or a solicitor).
Seeing a solicitor is not as expensive as most people imagine. The first appointment with a new client may be free of charge and at this meeting we will set out for you the costs likely to be involved in the services which we provide.
The Next Step
For further information or if you would like to arrange an appointment please call 01926 422101 or visit our Contact Us page. Alternatively you can send a message directly using the contact form below: