We have prepared this brief guide for clients considering the possibility of granting a Lasting Power of Attorney both in relation to property and affairs and also welfare. The different types of Power raise distinct matters for consideration.
What is an LPA?
In essence, in creating a Lasting Power of Attorney, you appoint another person (or more than one person) to make decisions that you would normally expect to make for yourself but cannot.
If the decisions are on financial matters, you can ask your attorney to help or take decisions as soon as the power has been through a registration process. If the decisions are about your health, then your attorney cannot make decisions unless you yourself cannot understand or communicate.
The Mental Capacity Act 2005 ensures that all the time you have capacity then the decisions are yours to make, although you can delegate financial decisions if you wish. If you are only temporarily incapacitated, then an LPA would allow your attorney to make any decisions that could not be put off.
Why would you create one?
It is increasingly difficult to speak to a third party (a bank, or hospital or government department, say) about someone else’s matters without going through a process of identification or password. The barrier is there for a purpose, to protect you and the information about you, but when you are unable to authorise or understand then the barrier becomes unhelpful. At best this causes frustration, at worst it means that a person you might want to be involved in helping you is actually shut out of the process.
There is a court process that would another person in a similar position as an attorney (called “deputy”) but it is considerably more expensive, and might not appoint the person you would wish to manage your affairs.
When might you create an LPA?
The current documents are reasonably long and involve at least six different decisions and choices. It is best to create a Lasting Power of Attorney, therefore, when you have the energy to consider the choices, and the judgment to choose the right person (or people) to appoint.
You have to be an adult to create an LPA, and you have to have mental capacity to do so. You have to have mental capacity to revoke an LPA, but subject to that, there is no reason to prevent you from creating a series of LPA documents to provide cover for yourself at different stages in your life.
Young adults might want to create LPA documents in case an accident reduced their capacity to understand or communicate; parents might want to create an LPA to prevent a burden falling on young children; older adults might create an LPA to make it possible for their family to be involved and have authority in their matters as their strength wanes.
Whom might you appoint as attorney?
It follows that you should only appoint someone you trust not only to act in your best interests, but who will understand what that might mean.
You might appoint the same person as attorney for your financial and your health matters, or you might want different people in those roles. You might want just one person to act, but you should consider having a back-up. The documents take a few months to set up and you would not be helped by having to wait if your one and only attorney could not act for you.
You can appoint professional attorneys, and you should provide for their fees if you do so.
How to make an LPA
Consult the gov.uk website, and/or a solicitor, complete the forms, send the completed forms for registration by the Office of the Public Guardian. Read the guidance regarding the power of attorneys once appointed, and the sort of guidance you might give them.
You will need someone to certify that you know and understand what you are signing. The registration process takes about three months.
You need to make a number of choices and ultimately you must decides what suits you best. However it is often sensible for you to consider appointing one or more people nearer your own age either together with, or as substitutes, those of the younger.
You may make as many powers as you like as often as you like, but the process is elaborate and quite costly, so it makes sense to create powers that are likely to be effective for as long a period as possible.
Fees and expenses
There is a fee payable to the Office of the Public Guardian of £82 per power.
There is much to think about, so please let us know if you have any questions.