Many people have had the experience of seeing a friend or relative become incapable of dealing with his or her own affairs as a result of mental incapacity. When this happens, it is often difficult for the family to pay outstanding bills or deal with the person’s finances generally. If this situation arises, then an application has to be made to the Court of Protection and the procedure can be both slow and costly.
This can be avoided by making a Lasting Power of Attorney or “LPA” now. An LPA is a document by which you choose someone to take certain decisions on your behalf. That person is called your “attorney”.
Types of LPA
There are two types of LPA – the Property and Financial Affairs LPA and the Health and Welfare LPA. You can make just one type of LPA, if you wish, or both of them.
This LPA gives your attorney power to look after your property and finances on your behalf. This would include the ability to deal with the following matters:
You can also include restrictions in the document which limit what the attorney can do. Such restrictions need to be carefully phrased so that they don’t cause confusion in the future.
This LPA allows your attorney to make decisions about your health and personal welfare. This would include the following types of decision:
Once again, you can limit the scope of the LPA if you don’t want your attorney to have such wide powers.
You can, should you wish, give your attorney the power to refuse consent to life-sustaining medical treatment on your behalf.
Neither type of LPA can be used until it has been registered with the Court (see below). The Health & Welfare LPA cannot be used unless you lose your mental capacity. The Property and Financial Affairs LPA can be used straight away, even if you still have capacity. This can be useful if, for example, a physical disability makes it difficult for you to deal with financial matters or if you would simply like your family to be able to look after matters for you.
You can choose anyone you like to be your attorney, so long as they are over 18, not a bankrupt and not mentally incapacitated. It’s sensible to choose someone who’s good at handling money to act under a Property and Financial Affairs LPA. It’s also important to choose someone you get on with who can be relied upon to act in your best interests. Most people choose close relatives or friends to act as their attorney. If you wish, you can appoint a solicitor or accountant to act as your attorney although they would generally charge a fee for fulfilling this role.
It is possible to appoint more than one attorney, in which case you’ll need to specify whether they are to act “jointly” or “jointly and severally”. Attorneys who are appointed jointly must always act together and cannot act separately. This means that if one of the attorneys dies, the LPA will be invalid. Attorneys who are appointed jointly and severally may act together but can also act separately if they wish, which provides more flexibility.
Every LPA has to contain a statement from at least one “certificate provider”. The certificate provider will discuss the LPA with you and then sign a certificate to say that in his or her opinion you understand the LPA and have not been pressurised into making it. We can act as your certificate provider for no extra charge.
Registering the LPA at the Court
Either you or your attorney can apply to the Court of Protection for registration of the LPA. Until the LPA is registered, your attorney cannot act on your behalf. The registration process takes at least six weeks, so we generally suggest it’s better to register the LPA sooner rather than later, just in case it’s needed in a hurry.
Before you apply to register the LPA you must give notice to up to five people of your choosing. The reason for this notice procedure is to protect you from fraud or undue influence.
If you don’t want to notify anybody, you can say so in the LPA but you would need to have two certificates from two separate certificate providers instead. We can arrange this for you.
Once a Property and Financial Affairs LPA has been registered, your attorney has full power to administer your affairs (subject to any restrictions contained in the LPA).
Once a Health and Welfare LPA has been registered, your attorney only has power to take health and welfare decisions on your behalf if you are not able to make those decisions yourself.
In both cases, your attorney must follow the Mental Capacity Act 2005 Code of Practice whenever acting on your behalf. This Code gives guidance as to how decisions should be made by and for people with impaired capacity and is essential reading for all attorneys. In particular, the Code states that your attorney should support you to make your own decisions if you are able to do so, rather than simply taking the decision for you. Any decisions that your attorney takes on your behalf must be in your best interests.
The Court of Protection has wide powers to supervise the actions of attorneys. That said, it will not usually exercise these powers unless problems are brought to its attention. It is therefore extremely important that you only choose as your attorney somebody in whom you have the utmost confidence that they will act in your best interests.
Changing your mind
If you wish to cancel your LPA prior to registration this can be done by means of a simple deed. If you wanted to cancel the LPA after it is registered, you would need to make an application to the Court of Protection.
Everyone should think about making LPAs as part of sensible planning for the future. Once correctly set up, the LPAs can be put away for an eventuality which, hopefully, will never arise. You, though, will have the peace of mind that comes from knowing that, if the worst does happen, someone you trust will be able to make decisions on your behalf.
Please contact Wake Smith Solicitors Limited of No 1 Velocity, 2 Tenter Street, Sheffield, S1 4BY or on 0114 2666660 for further information or to arrange an appointment
LPAs for a single person
LPAs for two people/mirror image LPAs
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