A Lasting Power of Attorney (commonly known as an LPA) is a document in which a person (“the Donor”) can appoint someone of their own choosing (“the Attorney”) to act in their affairs in the event that they should become physically or mentally incapable in the future.
There are two types of LPA. The first, and most commonly used type, is called a Property and Affairs LPA, which allows the Attorney to sell properties and handle finances etc. The second type relates to the Donor’s Personal Welfare. Attorneys appointed under a Personal Welfare LPA can make decisions relating to the Donor’s living accommodation and care, and have the power to consent to or refuse medical treatment on their behalf.
Why make a Lasting Power of Attorney?
Nowadays, people are living longer and this means an increase in associated problems regarding mental capacity such as Alzheimer’s and Dementia. You need to make an LPA whilst you still have your mental capacity because it gives you a say in who might manage your affairs in the future. It can also make life much easier for the people trying to care for you if you lose capacity.
If you were to lose mental capacity and not have an LPA in place (or an Enduring Power of Attorney made prior to the 1 October 2007) then someone – usually a family member – would need to make an application to the Court of Protection to be appointed as a Deputy to act in your affairs. An application to become a Deputy can take many months, and would involve the person applying to be your Deputy having to provide full details of your finances and your personal welfare to the Court of Protection. The Deputy would also need to submit accounts on an annual basis to the Court for every penny that they use of your money.
If a person had no direct family or close friends who could apply for Deputyship of their affairs, then a solicitor, an officer of the court or someone else unknown personally to them could make the application. This would mean that the person could ultimately have decisions made for them by a total stranger!
If I were to make a Lasting Power of Attorney, who could be my Attorneys?
You are free to choose anyone to be your Attorney, and can have as few as one, or as many as you wish. You can also appoint substitute Attorneys to act in the event that any of your appointed Attorneys are unable to act. However, you must bear in mind that someone who is subject to a full or interim bankruptcy order is not able to act as an Attorney.
How soon could my Attorneys act under an LPA?
It is not possible for the document to be used unless it is registered with the Office of the Public Guardian. The registration process takes around 6-7 weeks.
What has been done to prevent Attorneys abusing the Lasting Power of Attorney?
Part of the registration process involves serving notice on another person or people (who you as the Donor would choose) that the registration was being applied for. This person would then have the chance to object to the registration if they felt that the person who you had appointed as your Attorney would not act in your best interests.
How do I obtain further information?
By contacting a member of the Private Client Team at Pinkney Grunwells Lawyers on 01262 673445 / 01723 352125 / 01947 601122