Legal Corner, The Post, April 2019
What is a Lasting Power of Attorney?
A lasting power of attorney is a legal document which appoints a person or people to make decisions for you when you no longer have capacity to make decisions yourself. There are two different types of Lasting Power of Attorney (often referred to as an LPA).
- The Property and Finance LPA appoints someone to make financial decisions on your behalf, including opening or closing bank accounts, paying bills, making investments and even buying or selling property on your behalf.
- The Health and Welfare LPA appoints someone to make health decisions on your behalf such as whether you are cared for at home or hospital, what medication you receive and can even decide whether you receive life sustaining care.
What happens if you don’t have an LPA?
If you don’t have an LPA in place and you lose capacity to make decisions as a result of an accident or illness then someone has to be appointed to make decisions for you by the Court of Protection. This makes it harder for loved ones to help you as they have to go through the stress of a lengthy Court process before they can help.
5 Steps to create an LPA
Step One – Choose your attorney(s) carefully.
They will be given a great deal of responsibility so it is important to make that you appoint the right person to manage your affairs.
- Where do they live? If they don’t live locally how will manage your papers and keep track of your finances? Will they be on hand to make urgent decisions?
- Make sure that you trust your attorney to make very important decisions on your behalf.
- If your attorney is similar age or older than you will they be capable of acting as your attorney when required?
- If your attorney is very busy and has lots of other demands on their time will they be able to manage your affairs for you?
- If appointing more than one person can they work together?
Step 2 – How many Attorneys should you appoint?
You can appoint one attorney. Two or more people to act as your attorney at the same time. Or a replacement attorney(s) to act if the person you want to help you the first instance is unable to help you for any reason.
Step 3 – How do you want your attorney(s) to make decisions?
If you appoint more than one person. They can be appointed jointly so that they must make all decisions together or jointly and severally so that they can either act together or any one of them can make a decision on their own.
Appointing attorneys to act jointly and severally may be important if your attorneys live miles apart, or so that one can make a decision even if the other attorney is not available for example they are travelling. If your attorneys can only make decisions together and one of the attorneys is unable to act or unavailable the LPA will become invalid.
Step 4 – Create the LPA
Use the official government website www.lastingpowerofattorney.service.gov.uk or ask a solicitor or other professional to help you to draft your LPA.
Step 5 – Sign and register the LPA
The LPA can only be used after it is registered. Before registering the LPA with the Office of Public Guardian it must be signed by you, the attorneys and a certificate provider. Each signature needs to be witnessed by an independent witness. The certificate provider is an independent person who signs to confirm that you have mental capacity to appoint an attorney, and that you are appointing an attorney of your own free will. If there are any concerns about your mental capacity then the certificate provider should be a solicitor or doctor.