Have you thought ahead to what might happen if you’re suddenly unable to handle your own affairs? Whilst you may be perfectly fit and healthy now, your circumstances can change at any time and it’s best to be prepared should the need arise in the future. You may, for example, develop dementia, suffer from a stroke or be involved in an accident that leads to brain injury. You may need medical treatment that causes adverse side effects affecting your mental capacity. With a lasting power of attorney (LPA) in place, you can rest assured that someone you trust will make any necessary decisions on your behalf when you’re unable to.
What is a lasting power of attorney?
An LPA is a legal document in which you appoint someone you trust – called your attorney – to either help you make decisions or make them on your behalf should you lose the mental capacity to do so yourself. It’s a common misconception that healthcare and financial decisions can automatically be made by a spouse or close family member in the event you can’t make them. Unfortunately, the Court of Protection may have to intervene if you become unable to handle your affairs and don’t have an LPA in place.
There are two types of LPA to consider — one for health and welfare and one for property and financial affairs. You can choose to set up just one of these if you prefer or you can decide to have both. Your LPA needs to be registered before it becomes legally valid.
A health and welfare LPA
This type of LPA allows your attorney to make decisions about your health and general welfare, such as:
- Your daily routine, including washing, eating and dressing
- What medical care you need
- Where you live — for example, you may need to move into a care home
- Who you should have contact with
- Whether you need life-sustaining treatment
Your health and welfare LPA can apply to certain elements of your care or all aspects of it. It can only be used when you no longer have the ability to make your own decisions.
A property and financial affairs LPA
Covering decisions about your property and finances, you can decide whether this type of LPA is to be used once you’ve lost your mental capacity or as soon as it’s registered. It can enable your attorney to make decisions about:
- Managing your bank, building society and other financial accounts
- Paying bills, including your mortgage payments
- Collecting your pension or benefits
- Handling repairs to your property
- Selling your home
You can choose whether you prefer your attorney to make decisions relating to every aspect of your property and financial affairs or specific aspects, such as managing your bank account. Your attorney will have to keep accounting records and ensure your money is kept separate from theirs. As a safeguard, you can stipulate that copies of the accounting records are to be sent to your solicitor or other nominated person.
Choosing your attorney
Whoever you appoint to be your attorney must be at least 18 years old and have the mental capacity to make decisions themselves. Choose someone you trust to handle your affairs when you’re unable to, such as your partner, a relative, a friend or even a professional, such as your solicitor. You can have more than one attorney if you prefer and, if this is the case, you need to specify whether they are to act jointly or jointly and severally.
Joint attorneys have to agree on a decision before it’s carried out. This is a good way to ensure that one attorney doesn’t make a decision that’s not necessarily in your best interests. Joint and several attorneys, on the other hand, can act independently from each other as well as together. You may prefer that some decisions are made jointly while others are made jointly and severally. For example, you can stipulate that joint decisions must be made when managing your bank account but one attorney can make decisions regarding your property in Bexleyheath.
Making your lasting power of attorney
You can set up an LPA at any time as long as you’re over 18 and have mental capacity, meaning you can make your own decisions. You can do this online via the government’s website, obtain the necessary paperwork from the Office of the Public Guardian (OPG) or ask a professional, such as your mortgage and protection consultant, to prepare the application for you. Once your application has been completed, it must be signed by witnesses, your attorney(s) and a certificate provider. The latter is someone who can confirm that you fully understand what an LPA entails and that making it is entirely your choice.
Your application has to be registered with the Office of the Public Guardian and a registration fee needs to be paid. A fee is payable for each LPA application so, if you decide to make both types of LPA, you’ll need to pay two fees. There are occasions when you may be able to pay a reduced registration fee, such as having a low income, or be exempt from paying the fee if you receive certain benefits. Once the registration process has been completed via the OPG, your LPA will become valid.
Some differences apply when making a lasting power of attorney in Scotland and Northern Ireland. In Scotland, for example, the two types are known as a continuing power of attorney and a welfare power of attorney. There’s no need to make two separate applications if you prefer to have both as you can opt for a combined continuing and welfare power of attorney.
Can you change and end your lasting power of attorney?
You can make some changes, such as removing an attorney, using a partial deed of revocation. This has to be submitted to the OPG. However, you need to end your existing LPA and set up a new one if you wish to add a new attorney.
Your LPA will stay valid until you die although you can cancel it if you wish, provided that you still have the mental capacity to make this decision. You can do this by sending a deed of revocation to the OPG with your original LPA. Your LPA can also end if your attorney no longer wishes to take on this role, has lost mental capacity, or was your spouse but you’ve since become divorced. If you only nominated one attorney and they die without a replacement attorney being named in your LPA, it will come to an end. A property and financial affairs LPA will end if either you or your attorney agrees to a Debt Relief Order or becomes bankrupt.
Seek professional assistance with your lasting power of attorney
It’s important to plan ahead as you never know what turn life is going to take. Making a lasting power of attorney gives you peace of mind that someone you trust will be ready to look after your health and/or financial affairs if you become unable to. To make the process of setting up your LPA as straightforward as possible, get assistance from a qualified professional. Speak with your mortgage and protection consultant in Kent, London or Edinburgh to get the process underway and ensure you’re covered in the future.