A lasting power of attorney (LPA) puts plans in place should you become incapable of managing your affairs or lose mental capacity during your lifetime. An LPA automatically ends on death.
Appointing an attorney
When making an LPA, you can select someone or multiple people whom you want to make decisions on your behalf if you do not have the mental capacity to make decisions for yourself in future. These people are known as your attorneys. Your attorneys must be over 18 years old and have the mental capacity to make decisions. It is important that they are people whom you trust explicitly and that they have the necessary skills to make decisions if called upon in future.
If you appoint more than one attorney, you must specify whether you would like your attorneys to work together and agree unanimously on every decision, or whether you are content for them to make decisions individually. You may instruct your attorneys to make some decisions individually and specify the decisions you would like to be made unanimously. Generally, it is more practical for decisions to be made individually, though this is not suitable in every case. It is helpful to seek advice on this issue, to ensure the most appropriate arrangement is in place.
You will also need what is known as a 'certificate provider'. This person will need to sign the LPA to confirm you understand its consequences and that you are making it of your own free will. The Office of the Public Guardian has set out strict criteria to limit who can act as a certificate provider. Solicitors come under these criteria and this is part of the service we can provide.
Different types of LPAs
There are two types of LPA: one to cover your health and welfare decisions, and another separate document to deal with your property and finances.
A Health and welfare LPA can only be used by your attorney(s) should you lose mental capacity. The LPA can cover decisions such as where you live, who you see, what you eat and what medical treatment you receive. It can even go as far as authorising your attorney to consent to or refuse life sustaining treatment on your behalf if you choose to give them this authority.
The Property and Finance LPA covers matters such as the sale of your house and the use of your bank account(s) or investments. You can word the LPA so that it takes effect on registration and can then be used by your attorneys from that point onwards, even if you still have capacity to make decisions for yourself. This can be useful in certain circumstances and is something we would discuss with you when taking your instructions.
Making an application
When making an application, you are given the opportunity to specify what you would like your attorneys to do and what they must do when making decisions. There is an important distinction between the two and it is important that you make your wishes clear. A solicitor can be helpful in advising you about instructions and preferences and ensuring that your wishes will be understood by your attorneys in the future and are allowed under the guidance from the Office of the Public Guardian.
There are a set forms that must be completed and sent to the Office of the Public Guardian with a fee to create an LPA. Once sent, the Office of the Public Guardian (OPG) typically take around four months to check they are satisfied with the forms and to register the LPA. Sealed copies will then be issued by the OPG. These are extremely important documents that should be stored safely. Your attorneys can then use them as proof of their authority to make decisions on your behalf, should you become unable to do so. We can offer secure storage of original LPAs on behalf of our clients and provide certified copies.
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