A Lasting Power of Attorney (LPA) is a legally binding document which you can use to give someone of your choice the power to make decisions on your behalf when you can no longer do so yourself. The person you appoint to make those decisions for you is known as your Attorney.
There are two types of Lasting Powers of Attorney, and you can choose to make one or the other, or both. The first is for your Property and Financial Affairs and allows your Attorney to make decisions about your money which can include paying your household bills, running your bank account, dealing with the pension service, making decisions about buying or selling investments, or even selling your property should you need to go into care. The second covers your Health and Welfare and allows your Attorney to discuss your healthcare and medical treatment with healthcare professionals, make decisions about where you should live, and day to day decisions such as your diet, dress or daily routine. It is possible to include ‘instructions’ in your LPA which your Attorney must follow and ‘preferences’ which they should bear in mind when making decisions. By including instructions and preferences you will have peace of mind that your Attorney will carry out your wishes.
An LPA needs to be registered with the Office of the Public Guardian before it can be used. The current registration fee is £82 per LPA. If a person’s income is below £12,000 gross per annum then the fee is reduced to half and if they are in receipt of certain benefits such as the guarantee element of pension credit, then they are exempt from the fee. We would generally suggest applying for registration as soon as the donor has signed the LPA so that it is available for use immediately should it be required. You can if you wish appoint more than one Attorney in each LPA, and if you choose to make both types of LPA, you can appoint a different Attorney or Attorneys in each of them if that is what you would prefer. Once registered an LPA for Property and Financial Affairs can be used at any point when it becomes necessary or helpful to do so. For the LPA for Health and Welfare to be used it must be established that the person who has made the LPA (known as the donor) has lost capacity.
Often clients tell us that they do not think they need a Health and Welfare LPA as they have a ‘next of kin’. Unfortunately, in England and Wales the term next of kin does not have any legal standing and healthcare professionals and the local authority do not have to follow your next of kin’s wishes, although they should consult with them. Without an LPA in place healthcare professionals and the local authority will make the decisions which they deem appropriate and in your best interests. Due to the ongoing financial restraints on local authorities together with lack of care places, disputes between family members and local authorities are becoming more common.
If you do not have an LPA in place and you lose capacity then someone will need to apply to the Court of Protection to become your Deputy. You would have no control over who that person might be and it could be a Court-appointed Deputy, so someone you don’t know. In addition, permission of the Court is needed to make an application in respect of a person’s health and welfare and the Court of Protection will only appoint deputies to make health and welfare decisions in the most difficult cases. The Court instead prefers to rely on Section 5 of the Mental Capacity Act which deals with decision making in respect of care. A Deputyship Order is also a lot more expensive than an LPA because there are ongoing charges for every Order requested by the Deputy.
Sarah White, Associate Solicitor in the Clacton-based Wills and Estates team, advises on Wills, Lasting Powers of Attorney, Estate Administration (Probate) and Lifetime Planning. She can be contacted on 01255 254265 or by email at firstname.lastname@example.org