Whilst it is widely accepted that getting your Will written is vital to protect your assets and look after those you love, sadly a Will does nothing to help if you become incapacitated. For that you need something called A Lasting Power of Attorney (LPA). Whether, you are young or old, the possibility of suffering temporary or permanent incapacity through age, illness or accident shouldn’t be discounted. Even the young and healthy can be struck down unexpectedly but what exactly is A Lasting Power of Attorney and what happens if you lose capacity without having had one prepared?
What is an LPA?
In basic terms a Will is a legal document that expresses your wishes should you die. You express your wishes through a Lasting Power of Attorney should you lose capacity under The Mental Capacity Act 2005. Although you must draw them up when you have the mental capacity to do it.
There are two documents, one which deals with your Health and Welfare (LPAHW) and one your Property and Affairs (LPAPA) and they replaced the previous Enduring Power of Attorney in 2007.
What do they do?
The main function of these documents is to appoint your Attorneys, who are the people you trust the most to look after you. Your Attorneys are normally close relatives or friends. They legally have to act in your best interests at all times and not in their own. They will only make these sorts of decisions if you become unable to make them yourself.
How many Attorneys can I have?
There are no limits to the amount of Attorneys you can have and you can have them work together or separately. For example you may choose to appoint your spouse and adult children. Realistically though it begins to get a bit complicated if you have more than four. You can also appoint some spare or replacement Attorneys. They would act if the main Attorneys become unable or are unwilling to act.
You are also able to place restrictions or give guidance within the documents. For example, you may only want an Attorney to act in certain areas of your finances but not in others. You may wish to restrict any decision to give or refuse life sustaining treatment.
Do I need to register Lasting Powers of Attorney?
Yes, once prepared you can choose to register your LPA with the Office of the Public Guardian (OPG) immediately. Or if you ever lost capacity your Attorneys would then be able to register them and would be able to look after your finances and welfare according to your instructions contained within the documents. Registration can take six weeks or more. Once registered your Attorneys are able to make the important decisions knowing you and how you would like to be cared for and financially supported.
What if I don’t have LPAs and I lose capacity?
Unfortunately, should you lose capacity and not have these documents prepared then the process is more complicated and vastly more expensive.
First of all, any personal accounts you hold even in joint names are frozen. Decisions about your care and welfare will fall into the hands of Social Services. Your loved ones would then need to apply to get limited powers to The Court of Protection. Going through the courts for any reason is a long drawn out and expensive process. Applying to the Court of Protection is no different; normally costing many thousands.
If and when the court grants the authority, your loved ones could become Deputies. This would grant them limited powers to manage your affairs under supervision from the court. This court is notoriously secretive and presides over more than 20,000 cases a year. So it can be extremely slow.
The only way to ensure that the people who care for you most are able to act in your best interests unhindered is to draw up your Lasting Powers of Attorney documents whilst you still retain capacity. The government has been urging you to get them drafted while you have capacity.
Where do I start?
The process of getting a Lasting Power of Attorney drawn up can be a little daunting for many people. That’s why it’s worth considering engaging the services of a professional. An LPA is a legal document and therefore it is vital there are no errors. If there are mistakes the document can be rejected by the OPG. If you no longer have capacity at this stage then the document cannot be used and you won’t be able to make a new one.
The Office of the Public Guardian charge a registration fee of £82 but some exemptions do apply. To draw up a single LPA document I charge £350 and normally take instructions at the same time as your Will. You will need to know who you would like as your Attorney or Attorneys and have a good friend who knows you well who is happy to sign to say that you have capacity; this role is called the Certificate Provider.
One thing is certain when you draw up your Lasting Power of Attorney documents you will have the piece of mind of knowing that should fate deliver an unexpected blow your friends and family will be able to look after your best interests until you recover.