An attorney is someone who can help you make decisions or who can make decisions on your behalf. He or she becomes important if, at some point, you lose your mental capacity to make decisions due to an accident, illness or old age.
To appoint an attorney, you must prepare a legal document called a Lasting Power of Attorney (“LPA”). Using an LPA, you can appoint one or more attorneys.
If you appoint two or more attorneys, you must decide if they can act separately, that is make decisions without consulting other attorneys, or if they must act jointly, that is make decisions only when all the attorneys agree.
What happens if you do not have an LPA in place?
If you lose the mental capacity to make decisions and you do not have an LPA in place, the only alternative is to apply to the Court of Protection for appointment as a deputy. Consider a few issues that come with deputyship:
- The Court of Protection decides who is appointed as deputy. The person appointed may not be who you would have wanted.
- It takes several months to apply for deputyship. This would mean that your money and assets are left untouched for a long time which could be risky in some situations.
- The process of applying for deputyship can be expensive. The costs include solicitors’ fees, assessment fees, the application fee to the Court of Protection, an annual supervision fee and other expenditure.
On account of these costs, most people think it wise to make a Lasting Power of Attorney.
There are two types of LPA
- Health & Welfare
It allows the attorney to make decisions about your medical care and daily activities including eating and washing and a decision to move you to a care home. However, the Health & Welfare LPA can be used only if you lack mental capacity to make your own decisions.
- Property & Financial Affairs
It allows the attorney to make decisions about your money and property to include the payment of bills and the collection of pension and other benefits. The attorney can make these decisions when you are capable of making them yourself but only with your express permission.
Given that an attorney has authority to make important decisions, you must be careful when choosing an attorney. Make sure you consider how they handle their own financial affairs and the extent to which you know and trust them.
Note:
- An attorney must be aged 18 or above and have the mental capacity to make decisions.
- For Property & Financial Affairs, the attorney you appoint cannot be bankrupt or under a Debt Relief Order.
How to make a Lasting Power of Attorney
To make an LPA, you must create an account on the gov.uk website and do the following:
- Apply online or use paper forms by downloading the forms and taking a printout. The application must be signed by you, the attorneys, the witnesses and a certificate provider. A certificate provider is someone who confirms that it was your choice to apply for the LPA.
- Notify people listed in the LPA by sending the “Form to Notify People (LP3)”. If you are applying online, the forms are filled automatically.
- Register your LPA with the Office of the Public Guardian (OPG). If you are applying online, registration is simple and you can pay using credit or debit card. If you are using paper forms, you must sign and send the registration form to the OPG. Make sure to include the original LPA and a cheque to pay for the fee.
At any point in the future you can end or replace your LPA but you can do this only if you still have the mental capacity to make your own decisions.
Aristone solicitors can help you with the entire procedure of making an LPA. We can also help you certify copies of the LPA. Call us and book an appointment if you need help with an LPA or if you have any queries about it.
