A Lasting Power of Attorney (LPA) allows you (the ‘Donor’) to choose one or more individuals (your ‘Attorneys’) to be responsible for the management of your affairs in the event you became physically and/or mentally debilitated (you ‘lost capacity’).
LPAs are often overlooked however, in the unfortunate event you were to lose capacity, it would be extremely inconvenient (and often expensive) for your loved ones as well as yourself if fundamental financial and/or welfare decisions couldn’t be made. If no LPAs are in place, it will be the local authority or the court system to make decisions for you and not the people that know you and know your wishes.
It is important to bear in mind that if you lose capacity, you will not be able to set up LPAs anymore. There will be no choice but to either follow the relevant authority’s direction or apply to the court of Protection to have a friend or family member appointed as ‘Deputy’. This is a lengthy and costly process and, of course, you will have no say as to who applies for the position. I’s also important to bear in mind that the Court of Protection will often grant powers for the management of finances but extremely rarely will the Court grant Health and Welfare powers to the Deputy.
Two types of LPA
- Health and Welfare – The law says that for as long as you have the capacity to make decisions concerning your welfare (i.e. whether you are to remain living at home or whether you are to continue to be in receipt of life sustaining treatment) you shall do so. In the unfortunate scenario you were to lose the capacity to make such decisions however, this LPA will allow your closest family members or persons you trust to act in your stead. Without this, it will be the NHS or the relevant Local Authority to determine what is the choice best suited to you.
- Property and Financial Affairs – This LPA allows for your chosen attorneys to act for you in matters of finance and property. Differently from the above, this Lasting Power of Attorney may also be set up so that it may be utilized as soon as it is registered. This is the recommended option as a lot of individuals might lose their physical independence but might retain their mental agility. The result of this is to be able to maintain living at home unhindered even when you do not have the physical ability to walk into town and administer your essential matters. It is important to understand that an attorney may utilise your money only for your benefit and welfare and never for their own gain.
You do not have to appoint the same people on both attorneys and it is important to bear in mind that some decisions such as long term care arrangements may require both powers.