Introduction.
Many people find it uncomfortable to think about making a Lasting Power of Attorney, despite it being something that should provide you, your family and friends real peace of mind. In reality, the best time to make a Lasting Power of Attorney (“LPA”) would have been yesterday, so strike while the iron is hot while you are thinking of it.
Whether you 18 or 80, creating a LPA to help your Attorneys make informed decisions about your future life choices makes real sense as highlighted in this article.
An LPA is a legal document empowering you as “donor” to appoint one or more trusted people (“attorneys”), to either help or make important decisions on your behalf. By doing so you have more control over ‘life admin’ decisions if you fall ill, or are involved in a serious accident and have as a consequence lost mental capacity.
People you trust are given legal authority, (once ratified in an administrative process by the Office of the Public Guardian), to make decisions, if you are unable to make them yourself – or if you don’t want to.
Speak to one of our Private Client Solicitors and Lawyers in our offices based in in Ashford, Cranbrook or Hythe today, by calling 01233 624545 or fill in our “Get In Touch” enquiry form on the top or right hand side of the page to request a call back.
If you want to see how much your LPA might cost, you can get a competitive quote with no obligations.
Who can make an LPA?
Having an LPA in place can make things much easier for you and your loved ones if that time comes – so it's always worth considering now. The only criteria are that you must be 18 or over and currently have mental capacity, (defined as the ability to make your own decisions and understand their consequences), when you make your LPA. It must also be evident that you have created the LPA, without being placed under any pressure by others to do so.
The reasons why you may need someone to make decisions on your behalf may vary. It may just be a temporary measure, if you are going into hospital for example and need help with everyday financial tasks like paying your bills. Alternatively, it may be part of your longer term planning – say for example, if diagnosed with dementia and you want to plan ahead in case you lose mental capacity and are unable to make decisions in the future.
You do not have to be a British Citizen or necessarily live in the UK to register the LPA.
What is Mental Capacity?
A lack of mental capacity, can be demonstrated if you do not understand the information relating to a decision, or how to weigh it up. It may also be identified, if you are unable to remember the information long enough to reach a rational decision, or not being able to communicate the decision you have reached. You also have the reassurance that your LPA can be cancelled at any time, while you have mental capacity, by filing a ‘Deed of Revocation’ with the Office of the Public Guardian, should your circumstances and wishes change.
What are the types of LPA?
There are two types of LPA, namely “Property and Financial Affairs” and “Health and Welfare”. Importantly in advance of entering into the LPA, you will have provided your Attorneys with instructions and information to ensure that they honour your wishes and future arrangements as best as is possible.
Property and Financial Affairs LPA
This enables your attorneys to make decisions about things including managing your bank, or building society accounts and any other investments or savings, arranging to pay your bills, securing benefits or pension payments and even selling your home. (Please note that a Bankrupt cannot be retained in this role).
Health and Welfare LPAs
As the title suggests the LPA enables your Attorneys to make decisions regarding your daily domestic routine, what medical care you should receive, including moving you into a Care or Nursing home and ultimately what life sustaining treatments you should receive.
Who should be your Attorney?
It can make sense to share the load by having more than one Attorney in place. If more than one consider whether they must make decisions together ,(“jointly”) or separately, (“severally”). If appropriate, you can indicate that certain decisions can be made both jointly and severally.
Naturally, you may be most comfortable by appointing a relative, your spouse or partner, or close friend. Providing they are over 18 and have mental capacity themselves, they are eligible, whether they are British or even live abroad.
You will need to weight up how well you know them, that you consider them trustworthy, enabling them to make the best decisions in your interest. Perhaps think about how they look after their own affairs before choosing. That can be a good indicator. Finally, you will need to see whether they are prepared to accept their responsibilities.
Replacement Attorneys
As a precautionary measure, there may be sense in nominating other people who are able to replace your attorneys, if at some point in the future they are unable to act for you.
What if you are Married or in a Civil Partnership?
If you are married or in a civil partnership, you may naturally assume that your spouse would automatically be able to make decisions about your finances, health or care if you can no longer do so. Please do note that without an LPA, your spouse or civil partner does not have this automatic authority.
Considerations for any Attorney
When discharging their responsibilities any Attorney should always assume that you still hold mental capacity to make your own decisions, until they are completely satisfied that is not the case. In order to make decisions in your best interests, they should arm themselves with as much information as possible to help them reach those decisions. That decision should ideally be the least restrictive as regards your freedoms and rights.
Your Attorney should not dismiss any of your previous instructions or requests made whilst you have had capacity, if considered as unwise in their view. Instead, they should seek to enact any ‘unwise’ or possibly eccentric decisions, if they are consistent with your earlier wishes.
In essence the approach to follow is consider as wide a range of factors as possible, when determining what your “best interests” may be.
Contact our Private Client Department
If you are considering making a Lasting Power of Attorney and would like to speak to one of our experts about our LPA service, you can contact one of our offices in Ashford, Cranbrook or Hythe where our staff will be more than happy to answer any initial queries you may have.
You can also use our contact form to request a call back, in which case someone will be in contact at the earliest opportunity.