What types of Lasting Power of Attorney (LPA) are there?
There are two types of LPAs. One will deal with finances and property and the other deals with health and welfare.
Finances and property – If elected to do so, this can be used even if you have mental capacity. This is often useful for someone who is physically unable to get to the bank or sign documents for the sale of their property etc.
Health and welfare – This can only be used when someone has lost the capacity to make decisions for themselves. This will deal with where someone lives, what they eat, or how they are looked after and can also give permission to someone to make life-sustaining decisions – this is optional.
It is important to know what someone can do for another person either with or without an LPA whether you are the donor (the person who needs help), the attorney (the person who can make decisions), or the third party who needs to rely on the LPA.
Common Misconceptions about Lasting Power of Attorney
It is a common misconception that your next of kin can make certain decisions for you if you are not able to, especially in respect of your health and wellbeing.
The reality is that you must formally give the power to another person to make decisions for you, even if that person is your spouse or civil partner.
Historically, these powers were granted in an Enduring Power of Attorney (EPA), and these can still be valid today. However, more recently, a LPA is used, and this is what we discuss here.
What to consider before entering into an LPA?
One of the most important things to consider is who you want to make decisions for you. It’s important you choose someone you trust and who understands your feelings. Also, you need to consider what decision they can make. There are two types of LPA, concerning health and wealth. You can choose one or both. If your capacity to make decisions varies due to location or a health condition, you may wish to specify requirements and conditions to your LPA too.
What to consider if relying on LPA
The first thing to consider is if the person could make the decision for themselves. You may not always agree with the decisions, but if they have the mental capacity, it is still their decision. However, if they don’t have mental capacity, you’ll need to consider who has the power to make the decision on their behalf. Acting in the best interest of a loved one is a big responsibility, therefore sometimes more than one person is named
What can be done if someone doesn’t have an LPA?
If someone has lost their ability to make their own decisions and they have not made an LPA, all is not lost. An application can be made to the Court of Protection for either a one-off decision to be made or, more likely, to grant someone the power to make ongoing decisions. This can be costly and take time, therefore it is advisable that, before they get to this stage, they consider making LPAs just in case.
What happens when I contact you about a Last Power of Attorney?
We will arrange for you to have a telephone or online communication platform meeting with one of our Private Client solicitors, prior to which your payment would be required, and you would also need to send us a copy of your ID. During the telephone or Skype meeting, we will discuss with you the best course of action*.
Our solicitor will then prepare your LPA and send it to you in the post with clear guidance on how to sign it.
Our solicitor will then prepare your LPA and send it to you in the post with clear guidance on how to sign it. Part of our guidance would include requiring a person who has known you for over 2 years to confirm you have the capacity to sign.
You will need to sign your LPA
A certificate provider will need to sign your LPA after you. Often Attwells can do this for you
Your attorneys will need to sign your LPA
Once everyone has signed the document, your LPA is legally binding but will need to be registered with the OPG
* There may be occasions when, unfortunately, we have to question capacity or if an LPA is being made under duress. In these rare circumstances, a phone interview may not be appropriate.