A Lasting Power of Attorney (LPA) is a document which authorises another person or persons, the Attorney, to act for you and to do or authorise anything which you could do personally. The authority you give your Attorney can be in relation to your property and affairs and, if you wish, your health and welfare. What makes an LPA special is that even if you start to lose mental capacity it remains valid. This means your Attorney can continue to act on your behalf and deal with your property and finances as becomes necessary.
Whether you are young or elderly there may come a time when you are unable to manage your affairs, or perhaps deal with a specific issue, because of illness, accident or simply advancing years. If this happens you will need someone to help and an LPA is the only way in which you can appoint a person of your choice.
If a time comes when you no longer have the capacity to manage your affairs the Court of Protection through the Office of the Public Guardian can make decisions about your property and affairs either by making specific decisions or by appointing a “Deputy” to act for you. Typically a child or other close relative may have to apply to be appointed your Deputy. The appointment process can take several months to complete and is expensive. Also, the appointment is only the start and even the routine administration of someone’s affairs under the Court of Protection can be extremely time consuming and expensive. By signing an LPA you avoid the risk of those close to you being burdened with this responsibility at what may be a difficult time.
An LPA can be used as soon as it has been registered with the Office of the Public Guardian. It is usual to register an LPA as soon as it has been signed and the registration process takes about three months. However, once registered, the LPA can be locked away in a safe in the same was as a Will to be used if and when necessary. As well as being a safeguard against mental incapacity an LPA has the advantage that it can be used if something needs urgent attention and you are away. For example, if a document needs signing and you are on holiday the Attorney can sign it for you.
If a time comes when you no longer feel up to dealing with your personal business without help the Attorney can, if you wish, start to act for you on a regular basis. If you lose mental capacity he, or she, will have to do so.
Not necessarily. It is possible to provide that your LPA will not take effect unless and until your Attorney has reason to believe that you have become or are becoming incapable of managing your affairs. However, this would negate the advantage of being able to use the power in unforeseen circumstances when you are abroad or temporarily physically incapacitated.
The Attorney can do anything you can do yourself, for example pay bills, check bank statements, collect income, apply for benefits, prepare tax returns, deal with your house, insure it, repair it or arrange for it to be sold. Hence an LPA is a very powerful document and should be kept safely locked away until it is needed. We would generally recommend that it be retained by us on your behalf to be released on your instructions or upon there being evidence of loss of capacity. You can also revoke an LPA at any time so long as you have mental capacity to do so.
An Attorney’s most important duty is to act in your best interests at all times. That makes it important to chose an Attorney who will not be put in a situation where there may be a conflict between his interests and your own.
Attorneys must keep records so that they are able to give an account of their dealings if required to do so and must take reasonable care in dealing with your affairs.
Your Attorney is accountable to you and the LPA can be revoked for so long as you have capacity. If you become unable to manage your affairs the Attorney is accountable to the Court of Protection through the Office of the Public Guardian which can order the Attorney to produce accounts. Your Executors or the beneficiaries of your estate would be entitled to compensation from your Attorney if they breached their duties and caused financial loss.
You are free to chose whoever you wish but the Attorney should be someone whom you trust completely and who you know will act in your best interests. You can appoint more than one person or nominate a replacement if your chosen Attorney becomes unable to act. It is probably sensible to appoint someone younger than you who is methodical, business like and able to deal with things promptly. If you are appointing someone to make decisions about your health and welfare they should know you well and understand your wishes and values. You should also consider giving them written guidance.
You can only appoint an Attorney under an LPA by using a prescribed form. The Office of the Public Guardian will need to be satisfied that you have mental capacity to appoint an Attorney and understand the appointment. The form therefore incorporates a Certificate to be given by someone of some standing who has known you for two years or by someone who has met you and discussed the appointment and is qualified to give the Certificate, typically your solicitor or GP. As a safeguard to prevent abuse the form also provides for up to five people to be notified of the application to register the LPA. (Most people chose one or two) If, for some reason, you do not want anyone to be told when the document is registered you must have two people provide the Certificate.
Although the procedure for appointing an Attorney using a Lasting Powers of Attorney will take a little time and effort the potential saving in time and expense compared to having your affairs administered by the Court of Protection is well worth it.
An LPA is an essential part of planning for the future giving you the confidence that your affairs and welfare will be dealt with by trusted individuals chosen by you.
Twomlows have long experience of Powers of Attorney and will be pleased to help you through the appointment process.