The Coronavirus has made many of us consider what would happen to our financial affairs or who would be able to make medical decisions regarding our treatment should we become unwell and/or incapacitated. This is where a Last Power of Attorney can be of benefit.
A Lasting Power of Attorney (LPA) is a legal document that allows you (the Donor) to appoint one or more people (Attorneys) to make decisions on your behalf if you found you were unable to do so yourself. You must make an LPA whilst you are still capable of making decisions for yourself – which is called having mental capacity.
There are two types of LPA, which can be made at the same time or separately:
Property and Finance LPA, which gives the Attorney power to act in money, financial transactions, housing and property matters for the Donor, for example:
- looking after their bank accounts, savings, investments or other financial affairs
- buying and selling property on their behalf
- claiming and spending welfare benefits on their behalf
- deciding where they live
- making decisions about their day-to-day personal care or health car
A Property and Finance LPA can come into effect as soon as it is registered. This means that the Attorney will be able to start making decisions about your property and financial affairs straight away with your consent, even if you are still capable of making your own decisions. This can be useful if you are physically incapacitated.
If you set up a Property and Finance LPA and want someone to help you with your finances, and are in self-isolation, it would be sensible to set up internet banking so they can release funds on your behalf and pay for care as well as other items. Attorneys also have a responsibility under a Property and Finance LPA to protect income and capital growth of assets, so taking into account the current financial climate it would be prudent (particularly if your assets include investments and shares) for you and your attorney to discuss whether you think they need to engage a financial adviser to review the nature of the investments and risks. We work alongside IFAs regularly and can make introductions if you would like them.
Health and Welfare LPA, which gives an Attorney the power to act on behalf of the Donor in decision regarding the consent for medical treatment and care. It is not possible to use a Health and Welfare LPA until the person who made it has lost their mental capacity, through illness or accident, but it should be registered before it can be used. You might want to make a Health and Welfare LPA if you have been diagnosed with, or think you might develop, an illness that might prevent you from making decisions for yourself at some time in the future.
The kinds of illness which might prevent you from making decisions for yourself include:
- mental health problems
- brain injury
- the side-effects of medical treatment
If you appoint an Attorney to help with care responsibilities or making health decisions if you were unable to do so, you should make sure you discuss your wishes in advance (over the phone or video if you are in self-isolation) and the possible implications with them so you can ensure they fully understand what you want.
Careful consideration should be given to the range of powers you wish to give your Attorney. You can limit the power to certain parts of your affairs, for example, in the case of a property and finance LPA you may wish them to handle your money, but you might want to leave out the power to sell your house. Thought should also be given to any restrictions placed within the document – the overriding principle is that whatever decision they make must be in your best interests. To restrict this can prevent your Attorneys from acting in a way that ultimately would be in your best interests.
Attorneys are bound by a code of practice and if they fall short, they can face dismissal and sanctions imposed by the Court of Protection, which has overarching jurisdiction.
Since the Donor under an LPA must understand exactly its meaning and effect when signing to set it up because they are giving significant powers to their Attorneys, the rules governing the creation of an LPA are strict.
The process is effectively as follows:
- Choose your Attorney;
- Fill out all the relevant documentation to appoint the Attorney
- Register your LPA with the Office of the Public Guardian.
You can cancel or amend an LPA at any time while you are mentally capable, so for instance, you could just appoint an Attorney to act for with regards to your financial affairs whilst you were in a period of self-isolation and cancel it once that period ends. You can also change your Attorney if you decide there is someone else you would like to act for you.
If you already have an LPA, review it to make sure it reflects your current wishes, check it is registered with the Office of the Public Guardian, and that your Attorney(s) know where to locate it. If you need to make a new LPA, decide which type(s) you want and who you think would be the best Attorney(s) to help make decisions on your behalf.
We can help you with creating, registering, altering or enforcing Lasting Powers of Attorneys. Please contact us on 0118 9756622 and we will be pleased to assist.