A Lasting Power of Attorney (LPA) is a legal document that allows you (known as the donor) to appoint one or more people (known as attorneys) to help you make decisions on your behalf in the event that you can’t make your own decisions due to an illness or accident.
A surprisingly large number of people do not realise that your next of kin (your spouse and children) do not automatically assume the legal power to manage your affairs without having a legal document called a Lasting Power of Attorney in place.
In other words, when you are in a hospital and you need them to help with everyday tasks like accessing your bank accounts to pay bills, or when you need them to make long-term care decisions when you become incapacitated due to an illness or accident, they can only do so if you have written a Lasting Power of Attorney document and appointed them as your attorneys. Otherwise, your next of kin will need to apply to the Court of Protection and appoint a Deputy which we will cover in one of the paragraphs below.
As this post is packed with information, here is a summary of all the sub-headers you will find below:
There are three types of Power of Attorney and two sub-types under LPA.
A Lasting Power of Attorney (LPA) is the most common type of Power of Attorney. With no expiry date, an LPA allows the person(s) you appoint as your attorney(s) to make decisions on your behalf in England and Wales.
To make it valid, your LPA must be error-free and you must also register it with the government through the Office of the Public Guardian. Once registered, your attorneys can start making decisions on your behalf right away or when your situation calls for them to do so.
According to the statistics, about 15% of the LPAs received by the Office of the Public Guardian contain errors, causing time, money and even a torrent of negative emotions like confusion and anxiety. This is why it is wise to rely on the support of elderly care solicitors like Romain Coleman for peace of mind.
An LPA is further divided into two categories:
It is recommended that you make both LPAs at the same time.
This is the simplest form of power of attorney and it is usually put in place for temporary matters. It allows one or more people, your attorneys, to make financial decisions on your behalf temporarily, like when you’re in the hospital for a few months or you have gone on an extended overseas trip. You can choose to limit the activities which they can make decisions about and also set a time period.
While it is easy to set-up (you don’t need to register with the Office of the Public Guardian), it can be effective immediately from the date you specify and can be applicable to all or restricted activities, a major drawback of Ordinary Power of Attorney is it is only valid when you still have mental capacity to make decisions. This means as soon as you lose mental capacity – at a time when you really need your attorney to make decisions for you – it ceases to be valid. This is why most people opt for a Lasting Power of Attorney instead of this.
This has been replaced by the LPA explained above. However, if you signed one before October 2007, your EPA is still valid and allowing your attorney to manage your property and financial affairs. They cannot, however, manage your health and welfare.
If you, the donor, have sound mental capacity, your existing EPA can be used without having to register with the Office of the Public Guardian. Otherwise, your existing EPA cannot be used.
Anyone above 18 who has the right ‘mental capacity’, meaning the ability to process information and make decisions for themselves, can create a Power of Attorney. As no one knows what the future holds, creating one right now gives peace of mind and allows your trusted attorneys to make important decisions for you should an illness or an accident strike suddenly.
If you’re facing an illness or you begin to experience a decline in your mental ability, time is of the essence and it is best for you to create your LPA immediately.
Yes, because they are two different documents with different objectives. An LPA safeguards your interests while you’re alive, whereas a will states how you want your assets to be distributed after you’ve passed.
While you can create an LPA yourself, many individuals struggle with the legal jargon and make costly mistakes, as highlighted in this post “What can go wrong if I write my own Lasting Power of Attorney?” – follow the link to read more about common mistakes found in LPAs. We recommend you to contact a solicitor like Romain Coleman who has a wealth of experience helping individuals with Wills, LPAs and Probates to kick-start the LPA process.
An Advance Decision, also known as Living Will or Advance Directive, is a document in which you stipulate your wish not to receive any medical treatment when you aren’t able to communicate or can’t make a decision yourself at some time in the future.
An Advance Decision is comprehensive – all the treatments you allow or refuse must be named in the document. For instance, you can choose not to receive treatments if you suffer from a brain injury but you can opt to receive treatments following a diagnosis of dementia.
An Advance Decision is different from Lasting Power of Attorney because it is you who is making the decision, instead of your appointed attorney. However, if you have made an Advance Decision and some time later you make a Health and Welfare LPA, then whichever is created later will take priority.
The person you appoint as your attorney makes important decisions for you to protect your interests (not theirs), therefore, choose someone who is honest and trustworthy, who understands your wishes and values and is committed to undertaking the responsibilities seriously.
Your attorney doesn’t need to be a family member – he/she can be a friend or a trusted business partner.
People often think that appointing multiple attorneys can better protect their interests – in reality, this could complicate the decision-making process especially if the attorneys can’t agree with one another. If you choose to have more than one attorney, you need to decide how you want them to act – either ‘jointly’ or ‘jointly and severally’. Jointly means all attorneys must agree (sounds good, but if one passes then your LPA becomes invalid). Jointly and severally means your attorneys can make decisions together or on their own.
In the event that you choose to appoint one attorney, then we’d recommend you having Replacement Attorneys in place in case your attorney passes before you or he/she loses the mental capacity to act on your behalf.
As you can see, the process can be confusing so it is best to talk to an experienced elderly care solicitor like Romain Coleman for guidance and support.
Even if the application has been registered, you can cancel your Lasting Power of Attorney at any time provided that you have the mental capacity to make this decision. To cancel, send the original LPA and a written statement called a ‘deed of revocation’ to the Office of the Public Guardian.
If you don’t have a Lasting Power of Attorney in place, then your next of kin will need to apply for a Deputyship Order, which allows a member of your family to be appointed by the Court of Protection to make decisions on your behalf. Before a Deputyship is granted, no one can make decisions on your behalf, so don’t leave it too late to make an LPA.
Please note that in case nobody is appointed to speak on your behalf, an independent mental capacity advocate (IMCA) will be appointed to you. They will be involved in decisions on serious medical treatments and any change of accommodation.
Your future depends on the attorneys you appoint today to make important decisions for you, so it is vital to get the process right the first time round by contacting one of our specialist solicitors to help kick-start the process.
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