Lasting Powers of Attorney (LPAs) are legal documents which allow you to appoint one or more people (your attorneys) to make decisions on your behalf, if you were to lose capacity in the future. You are also able to choose replacement attorneys, if appropriate, who would be able to step in and act if your attorneys were not able to.
There are two types of LPA – one dealing with your health and welfare and one dealing with your property and financial affairs.
Under the LPA for health and welfare, your attorneys can make decisions about your medical care, your daily needs, moving into a care home and life sustaining medical treatment. This LPA can only be used if you are unable to make and communicate these decisions yourself.
It is becoming increasingly common for care homes and nursing homes to want to see an LPA for health and welfare in place, before allowing someone to become a resident.
The LPA for property and financial affairs enables your attorneys to make decisions about, and manage, your bank accounts and investments, pensions and benefits, and paying your bills. It will also allow your attorneys to sell your property if required.
This LPA (once registered with the Office of the Public Guardian) can also be used by your attorneys, under your authority, whilst you retain capacity, which can be useful if you would like them to deal with a certain asset or transaction for you.
When acting for you, your attorneys must always act in your best interests and must abide by the principles of the Mental Capacity Act 2005.
Many people mistakenly believe they do not need to put LPAs in place:
“I’m still fairly young, it’s something I only need to do once I become elderly.”
It is not just the elderly that are at risk of losing capacity by developing dementia. You could have an accident, stroke or illness at anytime that could render you unable to make your own decisions. You must have capacity at the time of setting up an LPA, if you wait until it is needed it may be too late.
“My family will be able to take care of things if something happens to me.”
Many people assume that their spouse or civil partner, or perhaps their children, will automatically be able to deal with their affairs if they were to lose capacity. This is not the case.
Without an LPA, no one has the legal right to act on your behalf. If you have an LPA this means that someone you trust and have chosen will be able to quickly and easily step in and act for you. If you were to lose capacity without having LPAs in place, your friends or relatives would have to apply to the Court of Protection to be appointed as your deputy.
This would then enable them to manage your affairs and make decisions for you. The person (or people) applying to the Court may not be the person that you would choose to act for you if you had the capacity to do so. The deputyship application process is lengthy, time consuming and expensive and is best avoided by putting LPAs in place whilst you have the ability to do so.
“All of my assets are in joint names, so I don’t need an LPA.”
If one account holder were to lose capacity, then the banks can freeze accounts, which would prevent the other holder being able to access funds. If you own any properties jointly with another person, then these cannot be sold without the consent of both owners.
“I have an Enduring Power of Attorney in place that I set up years ago, so I don’t need LPAs.”
Enduring Powers of Attorney (EPAs) were replaced by LPAs in 2007. Any EPAs signed before then are still valid, but these only relate to property and financial matters and do not cover health and welfare decisions. As EPAs are becoming less common, banks and financial institutions are less familiar with them, and this can cause problems when attorneys try to use them.
Having LPAs in place gives you the peace of mind that you have chosen who you would want to make decisions for you and reduces the stress your loved ones might otherwise face at an already difficult time.
If you wish to discuss this further, please do not hesitate to contact Sarah Strong by email: shs@cooperburnett.com or tel: 01892 515022.
This blog is not intended as legal advice that can be relied upon and CooperBurnett LLP does not accept any responsibility for the accuracy of its contents.
Originally published in Crowborough News: https://crowborough.news/
