A Will is a legal document that deals with what happens when you die.
A Lasting Power of Attorney (LPA) is a legal document that lets you choose trusted people to make financial decisions or health decisions on your behalf whilst you are alive but you no longer have mental capacity to make those decisions yourself.
You cannot make a Lasting Power of Attorney if you have already lost mental capacity.
There are two types of LPA. One LPA deals with your property and your money, for example, running bank and saving accounts, buying or selling investments, paying your bills, buying or selling your house, claiming and receiving benefits and dealing with pensions and attendance allowance.
The second type of LPA relates to your health and welfare. This deals with what medical treatment you receive, for example, life sustaining treatment, where you live and day to day matters, e.g. your daily routine, moving into residential care or finding a home.
Anyone aged over 18 can act as your attorney, for example, your spouse or partner, a family member, a close friend or professional, for example a solicitor. You cannot have anyone acting as your attorney who has lost capacity, who has become bankrupt (for your financial LPA only) or who decides they no longer wish to act as your attorney.
You can have as many attorneys as you want, but it is beneficial to have two to four attorneys that you know can work together practically to act in your best interests and make decisions on your behalf. They don’t all have to take part. You could appoint substitute attorneys or you can have them appointed jointly and severally, which means one attorney can act by themselves. You must, of course, trust your attorneys implicitly because they will have access to your money in respect of your LPA for property and financial affairs.
Your LPA must be registered before your attorneys can start helping you. It takes up to three months for registration, so it’s always advisable to get your LPAs registered early. Under your property and financial affairs LPA, you attorneys can act straight away even if you’ve not lost mental capacity. For example, you could be physically incapacitated and need them to help you with their finances and they can do this for you.
In respect of your LPA for health and welfare, this can only be used if you have lost mental capacity and cannot communicate your medical wishes or welfare wishes to the relevant people.
Your attorneys must all always act in your best interests and should assume that you can make decisions for yourself and help you to make those decisions for yourself. It doesn’t matter if you make an unwise decision.
They must almost act in your best interests and must consider whether they can make a decision or act in a way that is less restrictive of your rights and freedoms, but still achieves the purpose that they are trying to achieve on your behalf.
They cannot, however, change your Will and they cannot make substantial gifts on your behalf.
Yes, they can. For example, if you are a married couple with adult children, you might appoint each other and your children as your attorneys. In your Will you might also appoint each other and your adult children as your executors and this is entirely possible as they are two different legal documents and they are doing two very different things.
• Your attorneys
• A certificate provider must sign the LPA to confirm that you know what you’re doing, you haven’t
been forced into it and you have full mental capacity.
• There must be witnesses to you signing and your attorneys signing as well.
Yes, you can. You will have to revoke your LPA by way of a deed of revocation and if it has already been registered with the Office of the Public Guardian, then you must also notify them that you have revoked the power of attorney and send them a copy of the deed of revocation.
You must report this immediately to the Office of the Public Guardian so that they can investigate.
If you don’t have an LPA and you then lose mental capacity, you cannot make an LPA at that stage.
Somebody would need to apply to act as your ‘Deputy’ and apply to the Court of Protection. A deputy is similar to an attorney, however, it costs a lot of money to appoint a deputy and it can take a longer time to be appointed as a deputy. For more information, you can visit the government website at www.gov.uk/become-deputy
Mental capacity is the ability to make a specific decision at the time that it needs to be made. You need to understand the following:
• The decision that needs to be made
• Why you need to make the decision
• Any information relevant to the decision
• What is likely to happen when the decision is made
You need to be able to communicate your decision via speech, signing gestures or an otherwise. This means there is no one point at which you lose mental capacity. It is tested on a decision-by-decision basis. So, for example, you could be you could have the capacity to make simple financial decisions, but not complicated ones.
Your LPA is only applicable for England and Wales. You would need to get legal advice to see if it would work elsewhere in the world.
I liken LPAs to insurance policies. If you have a LPA in place, you hope you never you will never have to use it. However, if you do lose mental capacity, they are very useful things to have in place.
It currently costs £82 to register each power of attorney.
In respect of my fees, I charge the following:
• One x LPA – £300
• Two x LPAs – £450
• Four x LPAs – £750
Court of Protection Telephone number – 0300 456 0300
Applying for a Power of Attorney online – www.gov.uk/power-of-attorney
Mental Capacity Act Code of Practice www.gov.uk/OPG/MCAcode
Office of the Public Guardian
P.O. Box 16185