A Lasting Power of Attorney (LPA) is a legal document, which once registered with a court, enables a person or people of your choice to make decisions on your behalf as your “attorney(s)”. They are then able to make decisions legally as if they are you should you ever lose your ability to make your own decisions. However, they cannot overrule you whilst you continue to have the mental capacity to make your own decisions. Having LPA can help ensure that your property interest(s), financial affairs, health, and welfare matters can all continue running smoothly if you lose your mental capacity.
Loss of mental capacity does not solely occur due to the ageing process but can also result from accidents and illness at any age, whether temporarily or permanently.
Benefits of a Local and Professional Provider of Lasting Power of Attorney (LPA)
Using a local professional practitioner (as opposed to a solicitor – please see below) is important for several reasons.
Firstly, this ensures that should you lose your mental capacity and your property (or share in a property) needs to be significantly adapted, or even sold, because of your illness, then your selected attorney(s) can agree to this on your behalf. Without a locally arranged and legally valid LPA in place, then neither your co-owner in that property nor any other person if you have no co-owner, will have any option but to leave your property status as it is. This is because you are no longer able to provide your permission for any required changes or sale.
Additionally, a locally arranged LPA can ensure that if you run your own business, this can continue running smoothly if you lose your mental capacity. Wages and bills need to be paid. Likewise for suppliers, as well as many other ongoing financial arrangements which require your continuing permission and agreement. In the absence of any prearranged business agreement or a legally valid LPA in place, then nobody else can oversee your business affairs in your place.
Furthermore, having a court-registered LPA in place ensures that your chosen attorney(s) can ensure that you are not being wrongly charged for care to which you are legally entitled for free. Unfortunately, people being wrongly charged for their care in the UK is now all too common. Such refusal is usually motivated by the financial incentives rather than duty of care of the NHS and local authorities.
What is Included in a Locally Created Lasting Power of Attorney?
A locally created LPA typically includes several key components, as follows:
Personal Information. This section of the LPA typically includes your title, name, address, and date of birth.
Title(s), Full Name(s), Address(es) and Date(s) of Birth of your Attorney(s). This section confirms the individuals to whom you want to give permission to act on your behalf if you lose your mental capacity.
Instructions and Preferences. This section enables you to specify what your attorney(s) may and may not do regarding any aspect of your property, business, financial affairs, health and/or welfare matters. You should also ensure that your attorney(s) can reimburse themselves. This would be directly from your bank account(s) for any out of pocket expenses they incur whilst acting as your attorney(s).
Certificate Provider. Title, full name and address of a person, aged 18 or older. To whom you are NOT related by blood or marriage and have known for 2 years or longer. They will need to confirm that they believe you currently to have the mental capacity to make and understand your own decisions, and that you are not being coerced into arranging your LPA by any third party or parties.
Legal Power to Make Life Sustaining Decisions. Do you wish for your attorney(s) to have “Life Sustaining Decision-Making Power”?
Should they, rather than the medical profession or local authority, make such decisions upon your behalf and be guided by your specified instructions and preferences.
Should your Attorneys act “Jointly” or “Jointly and Severally”? If you elect for more than one person to act as attorneys on your behalf, then if they act “JOINTLY”, then this would mean that they could only make decisions collectively. If one became unable to act, then none would be able to act. However, if they act “JOINTLY AND SEVERALLY”, then they may either act together or individually. Please note that either way, all attorneys must ALWAYS act to serve your best interests as laid out in the Mental Capacity Act (MCA) 2005.
How to Arrange Local Lasting Power of Attorney (LPA)
Arranging your LPA locally can seem overwhelming, but it need not be. Here are some steps you can follow to make the process easier:
List your Instructions and Preferences. Make a list of all your instructions and preferences in relation to your assets, including land, property, and business interests. Also include your investments, shares, bank accounts, health and welfare matters. Also, any allergies or other medical requirements you may have.
Decide upon your Attorney(s). Consider who would be best placed to act as your attorney(s).
Decide upon your Substitute Attorney(s). If any of your chosen attorneys cease to be able to act for any reason, who should step in to act as attorney(s) in their place?
Create your LPA Documents. You can undertake this yourself, or you can work with a suitably qualified and insured professional practitioner. This will ensure that your LPA is correctly and comprehensively arranged to meet all legal requirements. The insurance is important to ensure that if a professional practitioner makes a mistake in your LPA documents, albeit unintentionally, their insurance will reimburse you or your family for any financial loss they incur because of that mistake. Also, the court is very precise regarding the order in which all involved parties complete the required documentation. If this is not completed correctly, then the court will return incorrect documents for their amendment. They may also charge additional application fees as a result.
What to Consider When Choosing an Attorney
When choosing an attorney, there are several key factors to consider:
Trustworthiness. You should select a person or people in whom you trust to manage your affairs and ensure that all your stipulations are satisfied.
Ability to Manage Finances. Your attorney(s) should have the ability to manage your financial affairs, including running a business (if relevant), dealing with your property issues, paying bills, etc.
Availability. Your attorneys(s) should be able to fulfil their duties in a timely manner. As well as be available to handle any issues which may arise.
Final Thoughts
In conclusion, a locally created and legally valid Lasting Power of Attorney is an essential component of your estate planning. It ensures that your affairs continue to run smoothly if you lose your mental capacity. This can also help prevent disputes amongst your family members. By following these steps, you can have a comprehensive and accurate LPA which protects your affairs. It also provides peace of mind for you and your loved ones.
Frequently Asked Questions (FAQs)
What happens if I lose my mental capacity and do NOT have legally valid LPA in place?
Nobody has any authority to make decisions upon your behalf. This means that important actions and/or changes relating to your property, business, financial affairs, health and/or welfare matters shall remain unresolved. This could prove at best inconvenient, and at worst devastating for you and your loved ones as a result.
Can I arrange my own LPA?
Yes, but it is recommended that you work with a professional practitioner. This will ensure that your LPA is correct, comprehensive and meets all legal requirements. Unless you are a criminal lawyer, would you represent yourself if wrongly accused of a crime?
Who should I choose as my Attorney?
When choosing an attorney, you should consider someone in whom you trust to manage your financial affairs and health and welfare matters. Your chosen attorney(s) should also be available to fulfil their duties in a timely manner.
Do I need a solicitor to arrange Lasting Power of Attorney?
Whilst you can use a solicitor, this is often a needlessly expensive method of arranging LPA. A suitably qualified and insured local professional practitioner is often a far more cost-effective route to achieving the same result.
Can I change my LPA after it is written
You can revoke an existing registered Lasting Power of Attorney in favour of new documents if the changes you wish to make are significant. Otherwise, you can make minor changes, such as the removal of an attorney, without fully revoking your LPA documents. Either way, it is recommended that you consult a local professional practitioner. This will ensure that any changes are properly administered and meet all legal requirements.
For further details WITHOUT fear of consultation fees or obligation, then please visit our Power-of-Attorney page.
TRF Wills (TRF) was created by Michael Cotterill in 2005. He is a member of the Society of Will Writers and registered with the Information Commissioner’s Office.