An LPA allows you to appoint someone to make decisions on your behalf if you lose capacity – this person is known as your Attorney. Without a Power of Attorney in place, decisions about your home, bank accounts and even end-of-life care can be put at risk.
There are two types of LPA –
Property and Finances
- This type of LPA allows you to appoint a trusted individual, or a number of individuals, to make decisions about your property and finances – such as selling your house, or managing your bills and collecting your pension.
- This LPA can be used as soon as it is registered, with your permission.
Health and Welfare
- A health and welfare based LPA provides your attorneys with the ability to make decisions about your care – including your daily routine (such as washing and dressing), the location of your care (such as a care home) and life-sustaining treatment.
- This LPA can only be instigated when you’re unable to make your own decisions.
Here’s some of the most common questions I receive from clients who are uncertain about the value an LPA can add to their future plans…
I’m fit and healthy, why should I consider establishing an LPA?
The last few years have shown us all the importance of being prepared.
From the heart-wrenching stories of high-profile figures such as Kate Garraway, to the unexpected deaths of hundreds of young parents and carers, the pandemic has altered our perceptions of both illness and death.
Even as we begin to see a decline in the number of infections as large portions of the population receive their second dose of the vaccination, there is still so much uncertainty as life starts to ‘reopen’. As we get back on the roads, return to the workplace and kick-start our social life once again, the risk of injury continues to rise.
Crucially, it’s important to ask yourself one key question: if you were to have an accident or suffer an injury that left you in a state of unconsciousness or with an inability to communicate your decisions, would your loved ones be protected and provided for?
Who decides if a person has mental capacity?
Rethink Mental Illness defines mental capacity as making your own decisions by being able to:
- Understand all the information you need to make that decision,
- Use or think about that information and weigh up the options to make a choice,
- Remember that information for long enough to make a decisions and,
- Communicate your decision to someone else – for example, by blinking or squeezing a hand.
If you are deemed not to have capacity, you are protected by the Mental Capacity Act (MCA).
The MCA has a clear, two-stage capacity test:
- Does the person have an impairment of their mind or brain, whether as a result of an illness, disability or external factors such as alcohol or drug use?
- Does the impairment mean the person is unable to make a specific decision when they need to?
The MCA promotes acting in the best interests of an individual at all times, and ‘to assume that a person has the capacity to make a decision themselves, unless it’s proved otherwise’.
The attorney appointed by an LPA must always ensure that the principles of the MCA are followed, as well as questioning, on a case-by-case basis, whether the person has the capacity to make a particular decision for themselves – there are differences, for example, between selecting what to purchase during a food shop and making financial decisions that will have a long-lasting impact.
How do I make an LPA?
You must be 18 or over and deemed to have full mental capacity when you make your LPA.
If you instruct our team, you can select from a variety of options – from a solo, ‘finances only’ LPA to documents that cover your health and finances for you and your partner.
The first step is meeting our team – either via a phone call or at one of our offices. You’ll need to provide the details of your chosen attorneys, including full names and the necessary contact details.
All relevant forms will need to be signed in front of a witness, and, although not always necessary, you can choose someone who will be notified that you are preparing an LPA. These steps are there to ensure that you are not being coerced in any way.
Next, you’ll need to get a certificate signed by a third party. The Certificate Provider must be an independent person, who has known you personally for over 2 years, or a professional service provider, such as a solicitor (we can offer this to you).
By signing the certificate, the individual confirms that they believe you understand:
- The purpose of the LPA.
- The extent of the powers you are giving the attorney.
And that you are not being forced to prepare this document.
Once the LPA application forms and filled and signed by you and your selected attorneys, they’ll need to be registered with the Office of the Public Guardian, which can take up to 20 weeks. It’s worth noting that the Office of the Public Guardian charge a registration fee of £82 per document.
Does an LPA mean giving up control completely?
The ability to make our own decisions is a source of pride for many. Which is why the widespread (and misguided) belief that an LPA means giving up control is really damaging, especially for those of us in the industry eager to see as many people as possible prepared for the future.
Establishing an LPA doesn’t mean that you automatically have to hand over responsibility to your named attorney(s) the second the documents are signed. Rather, an LPA means that a suitable plan is in place should it be needed. It’s like your masterplan, should the worst happen. And if you change your mind, you can amend, change and withdraw your LPA so long as you are deemed to have the mental capacity to do so.
Also, by naming the attorney(s) you’d like to oversee your affairs should you lose the ability to do so, you are ultimately retaining control, albeit via a few different voices. Your attorney(s) ensure that your hard-earned money is spent appropriately – for example, ensuring mortgage payments are met to ensure your loved ones have a roof over their head.
When it comes to a health and care LPA, you can also exercise additional control using an ‘Advance Statement’. Although these are not legally binding, you can set out a number of wishes. From the big decisions, such as where you’d like to be cared for (such as a nursing home or hospital), to personal preferences, such as requests to reflect any spiritual or religious beliefs you may have in your day-to-day care, these statements ensure that you have some input in your lifestyle, even if you’re unable to express these wishes in the moment.
Can an attorney make decisions on my behalf without my consent?
This is a common concern we face from clients. An LPA is a powerful document, which is why we advise you to think carefully about who to assign as your attorneys. However, it is worth noting that there are a number of safeguards in place to stop the LPA being ‘abused’.
The LPA relating to your health and care only takes affect if you are deemed to have lost capacity and the LPA can only be used as intended by the donor. Here at Harding Evans, we keep the original copy of the LPA and send you a certified copy, to be used if there is an emergency. This helps to ensure that the LPA is only activated for the purpose it was created.
As an extra safety net, if your attorney were to contact us asking for a copy of the LPA to make decisions on your behalf, we will always request a letter from a doctor confirming lack of capacity.
In reference to the financial LPA, this can be a little trickier, as this LPA can be called upon when you are deemed to still have full mental capacity. Financial LPAs are sometimes drawn up if the donor (you) is planning on heading overseas for extended periods of time and is requesting a trusted individual looks after their finances in country, for example.
The good news is, many banks are working on tightening their safety procedures to prevent abuse – and you can contact the Office of the Public Guardian if you suspect abuse.
Perhaps most importantly, attorneys can be removed by the court if there are concerns about the way in which they are acting.
What happens if I have an accident or suffer an injury and don’t have an LPA in place?
There is a common misconception that if something were to happen, a family member – or your next of kin – can simply step in and act in your best interests.
However, this often isn’t the case. If bank accounts or bills are in your name, then without your consent, these cannot be drawn from or amended to accommodate the change in your circumstances.
Your loved ones would need to apply for ‘Deputyship’ via the Court of Protection. This can be a lengthy (and costly) process, putting strain on your loved ones at what will already be an incredibly difficult time – and of course, you’d have no say in who acts as your deputy.
If you would like to talk to one of the team at Harding Evans about how an Lasting Power of Attorney can help you prepare for the future, we have years of experience and can offer expert, impartial advice and guidance.
Visit our website at www.hardingevans.com, email hello@hevans.com or call 01633 244233 (Newport) or 02922 676818 (Cardiff).
