Lasting Power of Attorney

Plan in case you lose the ability to manage your own affairs.

If you had a serious accident or stroke, or you developed dementia, you may not be able to manage your finances or make decisions about your care. A Lasting Power of Attorney (LPA) gives someone of your choice the ability to act on your behalf, should you be unable to act yourself.

There are two types of Lasting Power of Attorney – one for financial decisions (including property) and the other for health and care decisions. Both must be registered before they are valid. This guide explains why everyone aged 18 or older should have both types of Lasting Power of Attorney, and how you can go about making them.

If you have any questions or would like to book a free appointment, just call our team on 08700 120 130 or email info@aprilking.co.uk. Our headquarters are in Nottingham and we have offices across the East and West Midlands.

“Why do I need a Lasting Power of Attorney?”

Dementia, stroke or brain injury due to an accident can affect people of any age.

We associate losing mental capacity with old age but in fact, this can affect anybody at any point during their life. For example, did you know:

• One in four strokes in the UK happen in people under the age of 65 (Stroke Association)
• An estimated 42,000 people under the age of 65 in the UK have dementia – more than 5 per cent of all those with dementia (Alzheimer’s Society)
• Accidents can affect anybody at any time, rendering them unable to manage their own affairs.

Many people assume that their partner will automatically be able to take over handling their finances and make decisions for them, but this is not the case. Sometimes the bank will even freeze a joint account and refuse to allow access to funds when one party becomes incapacitated – even if the funds are needed to pay for their care.

Everyone aged 18 or over should have both types of Lasting Power of Attorney in place. Rather than leave the choice of who will be making decisions for you to chance, you can make a Lasting Power of Attorney now and decide for yourself who you’d like to be in charge of your affairs.

“…Someone in the world develops dementia every 3 seconds.”
~ World Alzheimer Report 2015

“What happens if I don’t have a Lasting Power of Attorney?”

Applying for a Deputyship Order is a long, complex and expensive process.

If you do lose mental capacity and you don’t have a Lasting Power of Attorney, someone will have to apply to the Court of Protection for a “Deputyship Order”. The person who applies may not be the person you would have chosen yourself. The application process is lengthy and expensive. Once an order is granted, that person (who is called a ‘Deputy’) can make decisions for you, which might include:

• Paying bills and expenses on your behalf.
• Deciding how your day is organised.
• Deciding how you receive care.
• Deciding if your home will be sold.

The Deputy must always act in your best interests, but abuse does happen – including theft, fraud, misuse of property, possessions or benefits, undue pressure and neglect (OPG, 2015). This is one reason why making a Lasting Power of Attorney and nominating someone you trust to manage your affairs is a sensible choice.

Applying for a Deputyship Order is a long, complex and often intrusive process. It is also expensive. There are application fees, assessment fees, legal fees and potentially hearing fees – plus an ongoing annual supervision fee.

The best advice is, don’t let it get to this stage. Making a Lasting Power of Attorney is a much simpler, cheaper and quicker way to elect somebody you trust to manage your affairs should you be unable to do so yourself.

Two thirds of the 21,935 reports of financial abuse against the elderly made last year involved accusations against family and friends.

~ Health and Social Care Information Centre

“But I’m not ill!”

Anyone could fall ill or have an accident, at any time – and then it may be too late to make a Lasting Power of Attorney.

Younger people often assume that Lasting Powers of Attorney are for the ill or elderly, but this is a common mistake. It’s crucial to understand that you can’t set up a Lasting Power of Attorney once you lose mental capacity.  So, for example, if you were in an accident tomorrow and lost mental capacity, nobody would be able to manage your affairs without a Deputyship Order – not even your partner or grown-up children.

Once completed, Lasting Powers of Attorney can take a substantial amount of time to register – 10 to 12 weeks is typical. Until they are registered, they cannot be used. So it’s wise to start the process as soon as possible.

People think, ‘I’m not ill, why do I need to make a Power of Attorney?’. But they’re missing the point. This is a document that has to be done in advance.

~ Paul King, TEP, April King Nottingham Office

“What exactly is a Lasting Power of Attorney?”

You can choose to use your Finance Lasting Power of Attorney any time you need help managing your finances, even though you haven’t lost mental capacity.

There are two types of Lasting Power of Attorney and it is advisable to have both.

The Property and Financial Affairs Lasting Power of Attorney can be used for decisions such as:

• Paying household, care and other bills.
• Claiming, receiving and using benefits, pensions and allowances.
• Making or selling investments.
• Buying or selling your home.

This type of Lasting Power of Attorney is a very convenient document that can be used if:

• You lose mental capacity because of illness or injury.
• You are away from home and want someone to handle a problem for you.
• You are in hospital and want someone else to manage your affairs.

In fact, this document can be used any time after it has been registered, with your permission (even though you have not lost mental capacity).

The Health and Welfare Lasting Power of Attorney can be used for decisions such as:

• The type of medical care you receive.
• Whether you stay in your home or move into residential care.
• What you eat from day to day.
• Your daily routine – dressing, going out etc.

This document can only be used (once registered) if you have lost mental capacity and are unlikely to make a recovery within a reasonable time.

Ask yourself who you would want to make these type of decisions if you could not make them yourself.

For many of us, there will be an obvious choice – a partner or a grown-up child who we trust. But without a Lasting Power of Attorney, this person will have no power to make those decisions for us from day-to-day. Of course, they could apply for a Deputyship Order, but they may be unable to take on this responsibility and someone else may be given the power instead. All of this can be avoided by making a Lasting Power of Attorney.

“What does it mean to have ‘mental capacity’?”

‘Mental capacity’ is about being able to make your own decisions. You won’t be able to make a Lasting Power of Attorney if you lose mental capacity.

You’ll hear the term ‘mental capacity’ a lot when you’re reading about Lasting Powers of Attorney. Most of us make decisions daily about every aspect of our lives. Being able to make these decisions is called mental capacity.

Illness, injury or various conditions prevent us from making decisions, or mean that we cannot make all of the decisions ourselves. For example, learning disabilities, brain injuries, dementia or a stroke can all impact our ability to make decisions.

However, some people get confused with the term ‘mental capacity’, thinking that it refers to mental illness. Having a mental health condition does not necessarily mean that a person lacks capacity. Just because they are suffering from depression, schizophrenia or bipolar, for example, does not prevent them from making decisions for themselves.

The law actually defines under what circumstances someone lacks mental capacity. The Mental Capacity Act 2005 says:

“…a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

The Act further explains that a person is unable to make decisions for themselves if they cannot:

• understand the information relevant to the decision,
• retain that information,
• use or weigh that information as part of the process of making the decision, or
• communicate their decision (whether by talking, using sign language or any other means).

When you make a Lasting Power of Attorney, you must have mental capacity. A ‘Certificate Provider’ will sign to certify that you are capable of making the choice. Often, this will be the lawyer that you are preparing the document with – but it can also be someone you’ve known for two years or someone with relevant professional skills such as a social worker or doctor.

If you don’t make a Lasting Power of Attorney and a Deputyship Order is required, there are a lot of forms which must be submitted in a very specific order. These include an Assessment of Capacity form (COP3) to be completed by a suitable medical practitioner who will certify that you have lost mental capacity. The practitioner can be your GP, psychiatrist or approved mental health professional, social worker, psychologist, nurse, or occupational therapist. The whole process is lengthy and complex.

“Who should I choose to be my attorney?”

You could choose your grown-up children to be your attorneys.

Anyone aged 18 or over can be your attorney including your partner, your grown-up children, other family members, close friends or a lawyer.

The  application forms have space for four attorneys but you can in fact have as many as you choose. However, consider that the more people you have, the more difficult it will be for them to reach an agreement!

You can decide whether your attorneys will be have to make decisions together, or whether they can make decisions individually. Assuming you are choosing people you trust, allowing them to making decisions on their own should not be a problem. If they have to make every decision collectively, this can cause considerable difficulties – especially if you have an even number of attorneys who simply cannot agree!

It’s also wise to name replacement attorneys in case your choice of attorneys are unable to act. If you appoint two or more attorneys and specify that they must make decisions jointly, then fail to nominate a replacement attorney, the Lasting Power of Attorney will no longer  be valid if one of them becomes unable or unwilling to act.

This is a good example of why it is important to use an experienced lawyer to prepare your Lasting Power of Attorney. There are many potential pitfalls that are not obvious from simply reading the form and although they do not always prevent the document from being registered, they can render the document invalid in the future.

Lasting Power of Attorney FAQS:

• How much does it cost to make a Lasting Power of Attorney?
• How do I make a Lasting Power of Attorney?
• What’s the difference between Lasting and Enduring Power of Attorney?
• What is ‘Enduring Power of Attorney’?
• Which forms do I need for Power of Attorney?
• What are the fees for making a Lasting Power of Attorney?
• What is Power of Attorney? – Power of Attorney meaning

Lasting Power of Attorney guides:

• Lasting Power of Attorney Solicitors/Lawyers
• Lasting Power of Attorney for Property and Financial Affairs
• Lasting Power of Attorney for Health and Welfare