LASTING POWER OF ATTORNEY
Lasting Power of Attorney
Lasting powers of attorney (LPAs) in English law were created under the Mental Capacity Act 2005, and came into effect on 1 October 2007. The LPA replaced the former enduring powers of attorney (EPA) which were narrower in scope. Their purpose is to meet the needs of those who can see a time when they will not be able – in the words of the Act, will lack capacity – to look after their own personal, financial or business affairs. The LPA allows them to make appropriate arrangements for family members or trusted friends to be authorised to make decisions on their behalf. The LPA is created and registered with the Office of the Public Guardian (OPG), an executive agency of the Ministry of Justice of the United Kingdom.
Reasons why you should have a Lasting Power of Attorney
Here are a dozen of the most compelling arguments in favour of arranging this important document earlier in life.
You control a Lasting Power of Attorney You can name the person you want to act as your attorney, whereas if you are incapacitated without a Lasting Power of Attorney, decision-making responsibilities could be awarded to anyone by the Court of Protection – including, for example, a relative who you don’t believe has your best interests at heart.
A Lasting Power of Attorney is ‘lasting’
That L is important. An ordinary power of attorney can be made in good health, but will be revoked by mental incapacity. An LPA not only lasts beyond the point of incapacity, but is generally not even triggered until that point, when it is needed most.
There are two types Lasting Power of Attorney - Health & Finance
You want someone to help with your finances, but you are still mentally capable of managing your affairs in general. Or perhaps you want to appoint an attorney specifically to decide on your health care provision.
You cannot be coerced
Any new Lasting Power of Attorney must be discussed with a certificate provider, which is either a professional, or someone you trust, who must verify that you know what you are agreeing to and that you have not been coerced into signing.
Lasting Power of Attorneys must be registered to come into effect
Lasting Power of Attorney only comes into effect when it is registered by the Office of the Public Guardian. Property LPAs can be triggered while you are still mentally capable, to appoint an attorney to help you out, whereas welfare LPAs are solely for when you cannot decide for yourself anymore.
You can state limitations
If you want to limit your attorney’s powers, you can do this by clearly stating limitations on the Lasting Power of Attorney. However, bear in mind that once you are mentally incapacitated, you will be unable to lift any such limits to grant more general powers – so don’t restrict access to parts of your life that you will want them to manage for you later down the line.
You can name multiple attorneys
You can grant rights to several different people if you want, who can make decisions together or separately. If each has individual decision-making responsibility, this also ensures you still have representation if one of your attorneys dies.
You can nominate successors
If you only want one attorney with responsibility, but you want someone in reserve in case your first choice dies or is incapacitated in their own right, you can nominate a successor to take over the role when it becomes appropriate for them to do so.
Financial powers are limited
Your attorney can’t just give away all of your money. Financial gifts are capped, and a court order will be needed to approve more sizeable gifts of your money to other people. Similarly, professional financial advice must be sought before your attorney can make investment decisions on your behalf, protecting you from them speculating too wildly with your money.
You are protected
The Court of Protection can revoke Lasting Power of Attorneys and can be asked to rule on whether or not they are valid. Meanwhile, the Office of the Public Guardian can be contacted when incidences of abuse by attorneys are suspected, or if they do not appear to be acting in the best interests of the individual.
An LPA is faster and less expensive
The Court of Protection exists to make sure your family gets the access to your finances that they need if you are incapacitated, but without a Lasting Power of Attorney that can take a long time to put into place, which can leave your loved ones to face hardship in the meantime. With a Lasting Power of Attorney it’s clear who gets access to your money and as soon as it is registered, they can start using it to make sure your family is properly looked after.
It gives you peace of mind
You probably wouldn’t want to die without a will in place, especially if you own property, have substantial cash savings, or have a partner or dependants. But what if something happens to you that does not kill you, but leaves you incapable of communicating your wishes to those closest to you.
It’s an uncomfortable thought but it’s crucial to consider it in good health and make the sensible decision – and a Lasting Power of Attorney is probably the single best way to make sure that your interests are protected from the moment you are incapacitated until your death, after which your will can distribute your estate in the usual way.
Lasting Power of Attorney for HEALTH & WELFARE
Health and welfare attorneys
As a health and welfare attorney, you make (or help the donor make) decisions about things like:
• daily routine, for example washing, dressing and eating
• medical care
• where the donor lives
You might need to spend the donor’s money on things that maintain or improve their quality of life. This can include:
• new clothes or hairdressing
• decorating their home or room in a care home
• paying for extra support so the donor can go out more, for example to visit friends or relatives or to go on holiday
You must ask for money from the person in charge of the donor’s funds.
Refusing or consenting to treatment
Check the Lasting Power of Attorney (LPA) for instructions about refusing or consenting to treatment.
You’ll need to:
• show the Lasting Power of Attorney to care staff
• sign medical consent forms
• make decisions in the donor’s best interests
You can’t always make decisions about the donor’s medical treatment, for example if the donor has been sectioned.
Lasting Power of Attorney for PROPERTY & AFFAIRS
Property and financial affairs attorneys
As a property and financial affairs attorney, you make (or help the donor make) decisions about things like:
• money, tax and bills
• bank and building society accounts
• property and investments
• pensions and benefits
You can use the donor’s money to look after their home and buy anything they need day to day (for example, food).
Looking after money and property
You must keep the donor’s finances separate from your own, unless you’ve already got something in both of your names like a joint bank account or you own a home together.
Managing bank accounts
Before you can manage the donor’s account, you must show the bank the original registered Lasting Power of Attorney (LPA).
You’ll also need to give proof of:
• your name
• your address
• the donor’s name or address if they’re not the same as on the bank account
The bank might ask for additional types of proof.
Spending money on gifts or donations
Unless the Lasting Power of Attorney states otherwise, you can spend money on:
• gifts to a donor’s friend, family member or acquaintance on occasions when you would normally give gifts (such as birthdays or anniversaries)
• donations to a charity that the donor wouldn’t object to, for example a charity they’ve donated to before
Buying and selling property
You’ll need to get legal advice if:
• the sale is below the market value
• you want to buy the property yourself
• you’re giving it to someone else
You can be ordered to repay the donor’s money if you misuse it or make decisions to benefit yourself.
LASTING POWER OF ATTORNEY from WILLMASTER
Are you worried about losing control over what happens to you if you have an accident or an illness and can’t make your own decisions (you ‘lack mental capacity’)
A Lasting Power of Attorney (LPA) is a legal document that lets you appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.
You must be 18 or over and have mental capacity (the ability to make your own decisions) when you make your Lasting Power of Attorney.
Get Started
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LPA page enquiry
Help with your Health decisions
Help with your Welfare decisions
Help with your Property decisions
Help with your Finanical decisions
Willmaster offers confidential in home consultations - FREE
Our local consultants will arrange a visit at a time and day to suit you. He will talk you through the benefits of each LPA and whether they are suitable.
If you are happy with the consultation and wish to proceed, the consultant will take all details and organise for all administration and liaison with the Office of the Public Guardian ensuring that you have a smooth and simple experience.
We cover Rochdale, Oldham, Bury, Blackburn, Burnley, Stockport, Manchester, Bolton and surrounding areas.