Lasting Power of Attorney (LPA) – Do I need it?
19 Jul 2022
Powers of Attorney, Private Clients
Have you ever thought about what would happen if you were unable to make your own financial and welfare decisions due to you having lost capacity? Read more to find out how a Lasting Power of Attorney (LPA) can help you.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document which allows you to authorise one or more trusted people (called the ‘Attorneys’) to make decisions on your behalf where you are unable to do so yourself sometime in the future. This could be because you lack the mental capacity or you are physically unable to do so.
There are two types of LPA:
• Property and Financial Affairs LPA – authorises your Attorneys to make decisions on your behalf in relation to matters such as paying your bills, collecting your income and any benefits you may be entitled to, or selling your house.
• Health and Welfare LPA – authorises your Attorneys to make decisions on your behalf in relation to your care, day-to-day activities, and medical treatment. For this type of LPA, your Attorneys can only act for you once you have lost the ability to make your own decisions.
An Attorney can be authorised to act under either or both types of LPA and an LPA must be registered before it can be used.
What is mental capacity and who decides if I have mental capacity?
Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision you need to make, why you need to make it, and the likely consequences of your decision.
You must have mental capacity at the time of making an LPA. The person that decides whether you have sufficient mental capacity is called a ‘Certificate Provider’. A Certificate Provider can either be someone you have known for at least two years or a professional, such as a doctor, lawyer or social worker. They will sign the relevant section of the LPA to confirm that you understand what an LPA is as well as the powers that you are giving to your Attorneys, and that you are making the LPA without any undue influence. We are happy to assist in being a Certificate Provider if required.
What is the importance of a Lasting Power of Attorney?
Planning for the future
Many people put off making documents such as LPAs, perhaps assuming that they will never need them or feeling it is morbid to consider the possibility of losing the mental ability to make their own decisions.
However, the reality is, no one can foresee the future. If you have an accident or are diagnosed with a condition such as Alzheimer’s, your loved ones will not necessarily be able to take control over your affairs without your express authorisation. It is therefore crucial to consider matters such as who will step into your position if needed, and whether they are authorised to do so.
Reduced stress and peace of mind
It is a common misconception that there is an automatic right for a family member such as a spouse to deal with an individual’s affairs once they lose capacity or if they cannot manage their own finances for some other reason. Unfortunately, without having an LPA in place, this is not the case.
If you do not have an LPA in place, your loved ones will need to apply to the Court of Protection to access your finances, which can be a stressful, lengthy, and expensive process. There is also the possibility that those applying to act on your behalf may not have been the people you would have wanted to be involved in your finances.
Making an LPA therefore gives you peace of mind that someone you trust will be in charge of your affairs when you are unable to make decisions of your own.
Ensures you get the treatment you want and allows you to leave specific instructions
If you are unexpectedly hospitalised, life-changing decisions may need to be made about your care or certain medical treatment that you may require. With an LPA in place, you can be more confident that the decisions made will reflect your wishes. For example, if there is a specific care home you would like to go to or you want to contribute financially to your children’s educational fees, you can record these wishes in your LPA.
Does making an LPA mean that I will lose my right to make decisions of my own?
Your Attorneys have a legal obligation under the Mental Capacity Act 2005 to run all decisions passed you whilst you have the capacity to make your own decisions. They also have an obligation to act in your best interests. Therefore, making an LPA does not mean that you automatically lose control of making your own decisions.
Can I change my mind once the LPA is in place?
You can cancel your LPA at any time provided you have the mental capacity to do so. If you do not cancel your LPA, it can be used by your Attorneys until you die.
If at any time you decide to change your Attorneys, you will need to cancel your current LPA and make a new one. The new LPA will then need to be registered before it can be used by your new Attorneys.
Get in touch to discuss making a Lasting Power of Attorney
At Harold Benjamin, we focus strongly on helping our clients deal with their affairs to give them and their loved ones the best advantage, both now and in the future. Get in touch with our specialist private client solicitors today by calling your local branch in Harrow or the West End or by emailing us at firstname.lastname@example.org.