Everyone Needs a Lasting Power of Attorney

Have you considered what might happen if you become incapable of making decisions for yourself?

Planning ahead is important and a Lasting Power of Attorney (LPA) gives you peace of mind and the assurance of knowing that someone you know and trust will make decisions on your behalf, should you become unable to make those decisions yourself.

Lasting Powers of Attorney (LPA) in England and Wales were created under the Mental Capacity Act 2005 and came into effect on 1 October 2007. The LPA replaced the former Enduring Powers of Attorney (EPA) which were narrower in scope. Their purpose is to meet the needs of those who can see a time ahead when they will not be able – in the words of the Act, will lack capacity – to look after their own personal and financial affairs. The LPA allows them to make appropriate arrangements for family members or trusted friends to be authorised to make decisions on their behalf.

Did you know that even a joint building society or bank account may be frozen if one of the account holders lacks mental capacity and there is no LPA in place?

LPAs are often left too late and if you are unable to look after your own affairs, and you do not have a LPA, the Court of Protection will appoint a Deputy to manage your affairs for you. There will probably be significant legal fees due (usually around £5,000) and the Deputy may not be aware of your personal circumstances. This could apply to anyone, at any age, by reason of illness, disability or mental impairment who may no longer be able to deal with even simple matters like handling a bank or building society.

Unlike the old EPA, which was one short document, the LPA has two sections which can be made separately or together.

• Property and Financial Affairs Lasting Power of Attorney lets you choose one person or more to make decisions about money and property for you – such as paying bills, collecting benefits or selling your home. You can appoint someone to look after your property and financial affairs at any time.
• Health and Welfare Lasting Power of Attorney allows you to choose one person or more to make decisions about things like your daily routine (eg eating and what to wear), medical care, moving into a care home or refusing life-sustaining treatment. This type of LPA can only be used once someone is unable to make their own decisions. This effectively replaces what was commonly known as a ‘Living Will’.

The person you choose to make decisions on your behalf is called your ‘attorney’. When choosing an attorney, you should think about how well the person looks after their own affairs such as their own finances, how well you know them, if you trust them to make decisions in your best interests and how happy they will be to make decisions for you. Your attorney can be anyone 18 or over, such as a relative, a friend, a professional (like a solicitor) or your husband, wife or partner.

If you appoint more than one attorney under your LPA, you can decide if they should always act and make all decisions together (“jointly”) or if they can act independently of each other (“jointly and severally”) without the agreement of all the other attorneys. If they are appointed jointly and one attorney dies, the LPA is no longer valid. It is possible to request your attorneys to act jointly for some types of decision only.

An LPA can be made by anyone aged 18 or over but can only be used once it has the signature of an approved Certificate Provider (usually a medical doctor or solicitor) and is registered with the Office of the Public Guardian. The Court fee is £130 to register each Lasting Power of Attorney, so for registering both types of Lasting Power of Attorney the court fee is £260.

The Certificate Provider is an independent person chosen by the Donor (the person making the LPA). They must confirm that the Donor understands the LPA and that the Donor is not under any pressure to make it. A doctor or a solicitor can act as your Certificate Provider, but it is not essential – you can ask a friend or neighbour to act in this capacity, providing they have known you for at least 2 years. However, they can not be a family member or attorney.

The guiding principles of the Mental Capacity Act 2005 are set out in five rules, which indicate how the term ‘capacity‘ (implying in this context mental capacity) is to be interpreted:

1. A person must be assumed to have capacity unless it is established that he lacks capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The test so defined is ‘decision-specific …. a single clear test for assessing whether a person lacks the capacity to take a particular decision at a particular time’.

Due to advances in medical science, many people are living much longer with one in six (16%) of the population of the UK aged of 65 in the 2011 census. This is up from 5% in 1911. Organisations such as The Alzheimer’s Society are inundated with enquiries. There has been a huge increase in the number of people needing help with their personal affairs and in 2011 there were 206,251 LPAs and EPAs received by the Court of Protection, 13,033 Deputies appointed with 23,538 applications made to the Court of Protection under the Mental Capacity Act 2005. It is possible to make an application in person, but most Donors choose to use a solicitor to make and register an LPA, particularly in cases where financial affairs are complex.

For further information, please look at https://www.gov.uk/power-of-attorney or ring The Office of the Public Guardian’s helpline on 0300 456 0300 or contact us :

Outi Hubbard at HPW Solicitors

Tel : 020 8735 9770 / Email : info@hpwsolicitors.co.uk