Your client (called the donor) is to appoint someone they know and trust to make decisions on their behalf should they become unable to do so in the future. This person is called an attorney. Attorneys must always act in the best interest of the donor. A Lasting Power of Attorney is a legal document which allows this. It is imperative that these are made early and while the Donor is in good heath and of sound mind.
There are 2 types of LPA (Lasting Power of Attorney)
- Health and Welfare
- Property and Financial Affairs
Let’s look at what each LPA can do and what decisions it covers:
Health and Welfare Lasting Power of Attorney
- Day to day decisions such as exercise, dietary requirements
- Medical care
- Life sustaining treatment
- Relocation into a care home or sheltered accommodation
A Health and Welfare LPA can only be used once it has been registered with the Office of Public Guardian (OPG) and when the donor loses mental capacity. Deputyship is rarely given if ever after Mental Incapacity has been established. Thus, meaning that families cannot get control of their loved one’s health & welfare after the fact. Local authorities and Courts would then hold the key.
Property and Financial Affairs Lasting Power of Attorney
- Managing bank accounts
- Paying bills
- Collecting income and benefits
- Making decisions with regards to the home
- Selling the home
- Managing investments
A Property and Financial Affairs LPA can be used as soon as it is registered with the OPG. Even in good health so if one partner is travelling and a signature is needed then the attorney can do this on behalf of the donor. The donor can restrict the rights the attorneys have under the “instructions” section of the LPA form in case they wanted to give only limited power. Remember the attorney has to act in the best interest of the Donor.
Mental and Physical Capacity
Before an LPA is made, it is imperative that the donor is over 18 and has mental capacity. This means they must understand:
- What an Lasting Power of Attorney (LPA) is
- Who they want to make it
- Who they are appointing as attorney
- How they have decided the attorneys; and
- That they understand what powers the attorney will have.
If the donor cannot decide for him or herself in relation to the matter due to an impairment of or disturbance in the functioning of his/her mind or brain, such as late set dementia, it is likely they will not have the required capacity.
Essentially, the donor should be assessed on whether they have the ability to make a particular decision at a particular time. If unsure, a GP or independent mental capacity advocate can assess the donor’s capacity.
Practical application of LPA’s
Property & Financial Lasting Power of Attorney
Impairment of or disturbance of the mind, through Accident Illness or mental incapacity can bring about the following.
Bank accounts frozen, even if joint accounts, Investments, property (Even Main Residence of the family), business, shareholding, shares or ownership of anything. All these areas can be frozen until an attorney has been appointed by the Court of Protection.
Arranging LPA’s after the fact can be expensive with legal consequence and slow to arrange, ongoing concerns of the court can be accounting on behalf of the Donor, with annual reviews of the attorney’s actions. The fee’s involved in dealing with a court could easily run into 000,s of pounds. This is clearly not ideal, all of this at a time when the attorneys who mostly being family members are probably struggling to come to terms with their loved one’s impairment.
Health & Welfare Lasting Power of Attorney
Looking at the same client as above, if no LPA exists for this client, day to day decisions such as exercise, dietary requirements, medical care, Life sustaining treatment or relocation into a care home or sheltered accommodation would not be the family’s decision.
It is very rare that deputyship would ever be granted by the courts to the family after incapacity. This type of LPA can only be granted to family members before any incapacity exists. This is why it is very important to arrange these documents well in advance and at a time when no illnesses or incapacity is expected, for peace of mind if nothing else.
These LPA’s can be arranged for a few hundred pounds at a time when the families are not under pressure and can last a lifetime with nothing further to pay once they are registered.
Capacity can be lost at any time and could be due to either an accident, a stroke or a deteriorating condition so please don’t wait until it’s too late.
Don’t dismiss this, thinking it will never happen to you!
NEVER TO SOON OFTEN TO LATE!
