Lasting power of Attorney
If you lose mental capacity, unless you've already filled in the Power of Attorney forms, your loved ones will need to apply through court to become 'deputy', a long and expensive process. You can only set up a Lasting Power of Attorney when you have mental capacity. Once you've lost capacity, it's too late.
An Enduring Power of Attorney (or EPA) was the system in place prior to the 1st October 2007 but they do not cover health and welfare decisions. So, if a valid EPA is in place already, it would still be valid in relation to your finances. However, you may need to consider getting an LPA to ensure decisions made about care and health treatments are covered.
Powers of Attorney give someone you trust the legal power to act or make decisions about you on your behalf.
There are a number of reasons why you might need someone to make decisions for you or act on your behalf for example:
You may be going into hospital and need help with everyday things such as making sure that bills are paid.
You may need to make more long-term plans if, for example, you have been diagnosed with dementia.
The role of an attorney is one of great responsibility, so it is important that you make the right decisions when choosing your attorney(s). This includes deciding how they should act and deciding what powers to give them as they will be considered your public guardian. Our legal experts can also help and guide you in choosing your attorney(s).
Whether you are an attorney for someone else or you are about to appoint an attorney, our expert solicitors are here to assist you with your questions about LPAs.
While a Will is there to ensure your wishes are carried out after you pass away, an LPA is to protect your interests during your lifetime. There may come a time when you are unable to make decisions on your financial affairs or health and wellbeing due to a serious accident, or an illness. The result of which could lead to you losing mental capacity, such as dementia.
In such circumstances, an LPA gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions (you ‘lack mental capacity’).
There are two types of Power of Attorney:
Health and Welfare LPA
Use this LPA to give an attorney the power to make decisions about things like:
your daily routine, for example, washing, dressing, eating
moving into a care home
This type of LPA can only be used when you’re unable to make your own decisions.
Property and financial affairs LPA
Use this LPA to give an attorney the power to make decisions about money and property for you, for example:
managing a bank or building society account
collecting benefits or a pension
selling your home
This type of LPA comes into effect as soon as it’s registered, with your permission.
You can only prepare LPAs when you have the mental capacity to do so. Your friends or family do not automatically have the legal authority to manage your affairs if you suffer an accident or you have lost mental capacity due to deteriorating mental illness.
Sometimes, it may be too late, in which case, your family or friends will have to make an application to the Court. This will be to decide upon who can manage your affairs on your behalf, but this can be expensive and time-consuming. Your attorneys cannot do whatever they like, they must act in your best interests. This may also be protected under the Mental Capacity Act 2005 in England and Wales.
Without an LPA, your loved ones may not be allowed to take care of you the way you wish. Hence the importance of making sure an LPA is in place as soon as possible.
Both types of LPA need to be registered with the Office of the Public Guardian before they can be used
A lasting power of attorney (LPA) is a legal document, which gives someone else (‘the attorney’) the power to make decisions on your behalf (‘the donor’).