Power To The People You Trust
Few of us want to think that we might lose our mental capacity or how we would cope with our financial affairs if we did – but one answer is to create a lasting power of attorney, as Deborah Escott-Watson of Battens Solicitors explains:
LPAs are also not just for older clients. Younger people with dangerous jobs or risky hobbies should consider making LPAs.
What is it? A Lasting Power of Attorney (LPA) allows you (the donor) to make a choice now, when you are well, about who you would like to look after you and make decisions on your behalf (your attorney), if, in the future you lose the mental capacity to make them for yourself.
Why do I need one? If you lack the capacity to make decisions, you cannot deal with your finances or look after yourself. There are two types of LPA: a property and financial affairs LPA which allows the attorney to make decisions about your finances, and a health and welfare LPA which allows the attorney to make decisions for you in respect of your personal and care needs. A health and welfare LPA can only be used when a person has lost capacity.
But I am fit and healthy at the moment! This is the only time to make decisions about your future! When you are sick it may be too late to make an LPA and then the Court will have to step in and appoint somebody, called a deputy, to look after you. This person may not be your choice, and it is also a longer and more expensive process. LPAs are also not just for older clients! Younger clients with risky jobs or young families should consider making LPAs.
How long does it take to organise and what is the process? An LPA is created by completing a form with your and your attorney’s details. Both you and your attorney need to sign the form. You also need to have a certificate provider who signs the LPA form to say that you are fully aware of what signing the LPA means and that nobody has forced you to make it. A certificate provider is a person who is over 18 and has known you for at least two years or a professional person like a doctor or solicitor. Once the LPA is completed it is sent to the Office of the Public Guardian (OPG) to beregistered. It takes approximately two months to register the LPA. You can do all this yourself or ask a solicitor to help you.
I don’t have any children and my friends are my age. Who should I appoint? You should always choose a person who you trust. If you do not have children or your family and friends are elderly, you can always consider appointing your solicitor to act as your attorney.
What if my attorney abuses their position? If it appears that an attorney is abusing their position, then anyone can raise a concern with the OPG or Social Services, who will investigate. You can cancel an LPA even if it is registered and you have the capacity to do so.
I have also heard people talk about EPA’s – what is the difference? An EPA, or Enduring Power of Attorney is essentially the same thing as the Property and Financial Affairs LPA. The law changed in October 2007 and EPAs were replaced by LPAs. There is one main difference. A LPA has to be registered with the OPG before it can be used, whereas an EPA can be used as soon as it is signed and is only registered with the OPG when a person loses mental capacity. The change in law introduced the Health and Welfare LPA which meant that a person could enable their attorney to make decisions about the donor’s person and not just their finances. We recommend that clients with existing EPA’s, sign a Health and Welfare LPA for complete protection and peace of mind.
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