Seven commonly-asked questions about LPAs

Old hands holding a young hand

People in the UK are living longer than ever before. This is good news, but it brings with it a multitude of problems. The Alzheimer’s Society report that there are 850,000 people with dementia in the UK, with numbers set to rise to over 1 million by 2025. With these eye-watering figures in mind, it is becoming increasingly important that you make clear what should happen in the event that you lose capacity to manage your own affairs.

First, let’s take a look at some of the most commonly-asked questions about LPAs:

What is a Lasting Power of Attorney (LPA)?

In simple terms, an LPA is a legally binding document that lets you choose a person (or people) you trust to make decisions for you, often in the event that you lack the ability to make your own decisions.

This person is referred to as your ‘attorney’, and you can choose what decisions they are allowed to make in relation to your property and finances or health and welfare.

There are two distinct types of LPAs that cover each of the above.

Property and finances LPA

This type of LPA covers responsibility for things like paying your bills, collecting your income and benefits, or selling your house. You can be specific about this if you want to, and can limit the decisions your attorney is allowed to make.

Health & welfare LPA

As implied by the name, this type of LPA is specifically related to your well-being. It includes decisions on whether you wish to accept or refuse life-sustaining treatment, and in which circumstances life-support machines could be switched off for example.

It also includes decisions about your day-to-day care and where you will live if your health deteriorates.

You can choose to make both types of LPA or just one, and it’s up to you whether you wish to appoint the same person as an attorney for both of them, or split the responsibility between two different people.

Who should you choose to be your attorney?

When choosing who should be your attorney, think about how well you know them and how well they look after their own health and finances. Importantly, you should choose somebody you can trust to be your attorney. This might be a family member or friend. Some people choose to appoint a professional such as a solicitor, particularly when it comes to property and finances.

Your attorney needs to be 18 or over and have the mental capacity to make their own decisions and if you’re making a property and finances LPA they cannot be bankrupt or subject to a Debt Relief Order.

When does an LPA become legally-binding?

Your attorney(s) won’t be able to make decisions for you until your LPA has been registered at the Office of the Public Guardian (OPG). This Government body exists to protect people who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance.

What if I still have the mental capacity to make my own decisions?

If you have an LPA drawn up but are still a long way off from needing to pass on your responsibilities for decision-making, you may be wondering whether you still have the right to decide things for yourself.

The simple answer to this is yes, you do. The most common purpose of an LPA is to allow people to make decisions for you in the future, if you can no longer make them yourself. It doesn’t mean that your attorney will ‘take over from you’ as soon as you fill in the form.

When it comes to a health and welfare LPA, your attorney cannot make any decisions until the point you cannot make them yourself.

However, with a property and affairs LPA, this allows you to say whether you want your attorney to be able to act while you still have capacity. Again, this does not mean that they will take over from you straightaway – you will also be able to act as long as you are mentally able to, but will benefit from a helping hand in managing your finances should you wish.

What exactly is meant by ‘Mental Capacity’?

According to UK law ‘mental capacity’ means a person’s ability to make their own choices in relation to a specific decision. It is entirely possible for someone to have sufficient capacity to make simple decisions, but not more complicated ones.

In England and Wales the Mental Capacity Act says that a person lacks capacity to make a decision if they have an ‘impairment of or disturbance in the function of their mind or brain’ (either temporary or permanent), and cannot therefore do one or more of the following:

  • Understand the information relating to this particular decision (including its benefits and risks)
  • Retain the information for long enough to make this decision
  • Weigh up the information involved in making this decision
  • Communicate their decision in any way.

What are the benefits of having an LPA?

  • Reassurance – If you are unable to make a decision for yourself in the future, the person you choose will make these decisions for you, giving you reassurance that everything is covered
  • A trustworthy attorney – Making an LPA prevents a stranger, or someone you may not trust, from having the power to make important decisions on your behalf
  • Save friends and family from future uncertainty – Making an LPA now will make things easier for your family and friends in the future as they will be certain of your wishes
  • Prevent potential expensive action – Without an LPA It will be more expensive, difficult and time-consuming for friends and family to get the authority to act on your behalf when the time comes. Someone may need to apply to the Court of Protection to become your deputy– a costly and lengthy process.

I have an EPA in place, should I change this to an LPA?

Any EPA made before October 1 2007 is still valid and can still be registered and used, so you don’t necessarily have to make an LPA too.

However, as an EPA only covers finance and property decisions, you may want to consider taking out a health and welfare LPA to cover decisions about your future care and treatment too.

It is a good idea to seek legal advice if you are thinking of setting up an LPA. Remember, it is a powerful and important document that can have a huge impact on your future, and that of your friends and family.

Throughout August we will be dedicating the month to encouraging people in and around Bury St Edmunds, Brandon and Thetford to make Lasting Powers of Attorney. During this month, we will offer significantly discounted costs for LPAs if you are making a Will with us at the same time. Spaces are limited and are filling up fast, so please contact us if you want to secure your appointment. 

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