Simply put … Before it’s too late. Before illness strikes. Before mental capacity deteriorates. Once capacity has been lost, you are no longer allowed to appoint an Attorney. This could leave you with no one able to pay your bills and make crucial decisions about your care and medical treatment. A Financial LPA will allow an appointed Attorney access to a person’s funds to sort out financial affairs. A Health and Welfare LPA allows a relative full control over care and medical options if you lose mental capacity.
Sadly, they cannot, and this is a common misunderstanding. Without an LPA (or Enduring Power of Attorney), financial companies and home service providers will not allow access to information if the owner has lost capacity. Even in the case of joint assets, some institutions will limit or possibly deny access. In addition, if other organisations such as utility and insurance companies only have your details and you lose the ability to act, your partner could be prevented from dealing with these companies. Having an LPA gives your Attorney(s) total legal authority to deal with your affairs and avoid these difficult, upsetting situations. Attorneys must be over the age of 18, mentally capable, free of bankruptcy or a debt relief order (if applying for the financial and property LPA). You may wish to choose one or more Attorneys. Often people will choose a partner, children or a close friend. You may wish to consider whether you are comfortable that their actions will reflect your wishes and how they manage their own finances. You need to think very carefully about the person(s) you can trust to act in your best interest, making sure no relatives who should be included are left out to reduce the risk of family disputes. If you require legal advice on any of these matters you would need to obtain and rely solely on the advice of a solicitor of your choice. LPA Protect cannot give legal advice.
You can choose to have one or more attorneys. They can either act on their own with the power to make decisions singularly, (Jointly and Severally). Or if all decisions are to be made together, (Jointly). You would then need to consider if it is feasible for your attorneys to be present to agree on every action taken. Most people select jointly and severally which could allow attorneys to work together or separately to serve your best interests. On a Jointly and Severally LPA, it is also possible to stipulate some actions that you would prefer to operate on a jointly basis. For example, selling your property.
Yes, you may include guidance or instructions in both types of LPAs, (Financial/Property and Health/Welfare). The instructions must be followed by the Attorneys; however, guidance is not binding on them.
Attorneys have a legal responsibility to act in the best interest of a Donor. They must carry out their role with integrity following any instructions and preferences set out by the Donor in the LPA documents. They must help make decisions in the Donor’s best interest, allowing them to take part in the process as much as possible. They will need to observe and respect the Donor’s past and present wishes, feelings, beliefs and values. They should never make assumptions based on age, behaviour or appearance and always respect the Donor’s human rights.
They will need to consider if mental capacity could be regained in the future and if so, could the decision be delayed.
If a decision cannot be made, Attorneys should then seek advice from a relevant organisation such as the Office of Public Guardian, social services, or a related charity.
This is a commonly asked question. Conversations with family members about possible declining health or loss of capacity can be hard, but the following suggestions may help:
- Let your family know beforehand what you would like to discuss and find a place where you will not be disturbed or rushed.
- It isn’t always necessary to discuss everything in one conversation. There are likely to be other things to think about and go back to later.
- Make some notes ahead so you can cover all the main points.
- Be honest and talk about all your feelings, not just the positive ones and don’t be embarrassed if anyone gets emotional. It’s bound to happen.
An existing Enduring Power of Attorney document is still valid but are more limiting than LPAs. EPAs only dealt with financial and property matters and were replaced in 2007 with the two types of LPAs (Financial and Property and Health and Welfare). As EPAs do not cover health and welfare, it is recommended to register a Health and Welfare LPA.
As long as you are mentally capable you may revoke your Lasting Power of Attorney at any point, even if the LPA has been registered. This can be done by completing a statement called a “Deed of Revocation”. You can then register a new LPA.
Quite often it is not too late, and this will depend on how progressed the dementia is. In its earlier stages, capacity is unlikely to have been lost. The Mental Health Act 2005 defines capacity as the ability to:
- Understand the information that is relevant to a decision
- Retain the information long enough to make a decision
- Use or weigh up the information in order to make a decision
- Communicate their decision by any possible means, including talking, sign language or simple muscle movements such as blinking an eye or squeezing a hand.
If you have any concerns regarding your mental capacity or the mental capacity of a relative, please obtain further advice from a medical practitioner or a Solicitor of your choice.
Yes. You will retain full control over all your affairs, but you also have the flexibility to start withdrawing from your financial decisions and actions over time if you prefer. With a Health and Welfare LPA, no-one can act for you until you lack the mental capacity to do so.
Registration usually takes between 8-12 weeks. There is a mandatory 6 week waiting time to allow for valid objections which may be raised to the Office of Public Guardian.
You will receive the original LPA document and Donor signed copies for each Attorney.