Most people acknowledge that it is important to organise their affairs in the event of their death, which is why so many people make a Will these days. However, many fail to make similar provisions to organise their affairs should they become unable to look after them themselves during their lifetime, through illness or accident.
Lasting Powers of Attorney (LPA)
Under the Mental Capacity Act 2005, you can now draw up a legal document called a Lasting Power of Attorney (LPA).
A Lasting Power of Attorney enables you to appoint a person or persons to look after your affairs in the event of mental and/or physical incapacity, perhaps due to infirmity in old age, illness or accident. A person (or people) nominated by you takes care of your decisions for you in accordance with your personal wishes. This ensures that people you know and trust are looking after you and your assets when you are unable to do so yourself. Any decision your attorney makes must be made in your best interests.
It is essential that such arrangements are made while you are fit and healthy since the law does not allow such arrangements to be made after the event, which can leave families with a multitude of practical problems.
There are two types of LPA; one which covers the management of your financial affairs, called a Property and Financial Affairs LPA, and a second type called a Health and Welfare LPA, which covers the management of personal matters such as medical care.
Taking these two LPAs in turn:
Property and Financial Affairs LPA
A Lasting Power of Attorney for Property and Financial Affairs enables your nominated person to take care of your financial assets for you. Responsibilities include:
- Managing bank accounts (including current accounts, building society accounts and savings);
- Paying bills (including setting up and stopping Direct Debits);
- Dealing with your tax affairs;
- Collecting and managing payments such as benefits and pensions;
- Selling or buying property and other assets e.g. investments;
- Use of money to look after your home and buy anything you need day to day (e.g. food).
A Lasting Power of Attorney for Property and Financial Affairs involves a high level of responsibility. This is why it is important to appoint someone you trust and who you know will act in your best interests.
They should also discuss decisions that affect your living arrangements, medical care or daily routine with your health and welfare attorney, if you have one.
Health and Welfare LPA
A Lasting Power of Attorney for Health and Welfare is used only if you lack the capacity to express your wishes yourself and enables your nominated person to take care of your social and healthcare decisions. Responsibilities include:
- Daily routine. For example washing, dressing and eating;
- Medical care;
- Where you live.
They may need to spend your money on things that maintain or improve your quality of life and this can include:
- New clothes or hairdressing;
- Decorating your home or room in a care home;
- Paying for extra support so you can go out more, for example to visit friends or relatives or to go on holiday.
If you have set up a Health and Welfare Lasting Power of Attorney it is important to consider how your nominated person will access the funds for your care. For this reason it is advisable to also appoint an attorney for Property and Financial Affairs.
Refusing or consenting to life sustaining treatment is another important part of the document. Life sustaining is treatment that replaces or supports ailing bodily functions, such as ventilation or CPR. Whether or not a treatment is life sustaining will depend on the specific situation and some treatments will be life sustaining in some situations but not in others.
You will need to decide whether or not you want your attorney to be able to make decisions about life-sustaining treatment. If you would prefer not to leave them with that decision, then the doctors will determine the appropriate course of medical action, unless you’ve made an Advance Decision (Living Will).
While an LPA is a very powerful document, there are numerous safeguards to prevent its abuse:
An LPA is primarily used to appoint a person to deal with your affairs after the onset of mental and/or physical incapacity. However, when registering the document, certain people, who you elect when drafting the LPA, can be notified and anyone can object if they are not happy with the reasons why the document is being brought into effect. This is optional.
You can include restrictions on what the people you appoint can and cannot do under the authority of the documents and you can include advice or guidance on how you would like them to act.
When the LPA is signed, a certificate must be completed by either a lawyer, doctor, social worker, an Independent Mental Capacity Advocate or someone who has known you personally for at least two years to confirm that the person making the document understands the meaning of the LPA and the consequences of it.
In order to be fully activated, an LPA must be registered with the Office of the Public Guardian (OPG) for which the OPG will charge a fee for each document that is registered with it. The fee is currently £82.00 per document.
Like your Will, an LPA can be updated or cancelled at any time should your circumstances change, as long as you have the capacity to do so.
If you would like to make an appointment to discuss Lasting Powers of Attorney, please do not hesitate to contact one of our team at RRL Wills.
This publication has been prepared by RRL Wills Limited. It is to be treated as a general guide only and is not intended to be a comprehensive statement of the law or represent specific advice. No liability is accepted for the opinions it contains, or for any errors or omissions. All rights reserved.