Your frequently asked questions…
Whilst we would all hope that we will be able to make our own independent decisions in the future, some of us will not have that luxury. Preparing yourself for such a possibility can help ease your mind, and help avoid family conflict down the line. If you have a Lasting Power of Attorney (LPA) in place and later lose capacity to make decisions yourself, people you have appointed and trust will make any decisions.
How does a Lasting Power of Attorney work?
An LPA is a legal document where a person (the donor), appoints one or more people as attorneys to make decisions on their behalf if they are unable to do so in the future.
The LPA documents replaced the Enduring Power of Attorney (EPA) documents from 1 October 2007. Any EPAs made before that date are still valid.
You must register your LPA, or indeed EPA, with the Office of the Public Guardian. LPAs can be registered when they are initially made, or at such time as you lose capacity. Your attorney will register your EPA, on the other hand, once you lose capacity.
You can revoke an LPA or EPA at any time while you have capacity to do so.
What does a Lasting Power of Attorney cover?
There are two types of LPA:
- Property and Financial: this deals with money and property. This includes things such as the management of bank accounts and payments, and selling your property.
- Health and Welfare: this deals with decisions relating to matters such as care homes, medical care, daily routines and life sustaining treatment.
Who can act as an attorney?
To act as an attorney, a person must aged 18 years or older and have capacity to make their own independent decisions. An attorney acting under a property and financial LPA must not be bankrupt or subject to a Debt Relief Order.
When appointing an attorney, you may consider relatives, friends or professionals. Take into account how well the donor will look after their affairs. Do you trust them to make decisions in your best interests? How well do you know them? Would you be happy for them to make decisions on your behalf?
What happens if my attorney can no longer act?
As the donor, you may appoint a replacement (or more than one replacement) attorney. The replacement attorneys will step in to act if the original attorneys are no longer able to act.
If you appoint more than one attorney, they can either act:
- jointly: all attorneys are required to agree on decisions; or
- jointly and severally: attorneys can make decisions together or on their own.
You can appoint attorneys to make certain decisions jointly and others jointly and severally. You may also include specific instructions on how you wish your attorneys to act, or to make certain decisions.
When is an attorney appointed?
An attorney may be appointed to act under a property and financial affairs LPA either when the donor has lost capacity or as soon as the document is registered. If the document is restricted to use only when the donor has lost capacity, it will become valid once this has been proven.
What happens if I lose the capacity to make my own decisions and I don’t have an LPA?
If you lose capacity and do not have an LPA (or EPA) in place, any actions or decisions regarding your health, welfare, financial affairs or property would need to be made by an application to the Court of Protection.
The Court of Protection has jurisdiction over property, financial affairs and welfare of those who lack capacity. It will appoint a deputy to deal with your affairs. Applications for a deputy through the Court of Protection usually takes several months and can be very expensive. The deputy would be expected to account to the court every year and pay yearly fees.
Do I need an LPA?
Preparing an LPA will give you peace of mind. You will know that all your affairs will be taken care of by those that you trust and have personally appointed.
You can only create an LPA whilst you still have full capacity. Once lost, it is not possible to appoint attorneys. This leaves any decisions to the Court of Protection.
We would always recommend that everyone considers whether or not an LPA would be appropriate. Unfortunately, there is a possibility that someone of any age could lose the capacity to make their own decisions.