Should you become physically or mentally incapable of dealing with your own affairs, your family would be unable to deal with the same, without the LPA in place.
An LPA is a legal document in which you are able to appoint one or more people to act on your behalf, should you be in a position where you are unable to make decisions for yourself. The person or people you appoint are called Attorneys.
LPAs only operate during your lifetime and will not extend beyond your death, i.e. your attorneys will not be able to manage the administration of your estate on your death. For this you would require a Will.
TYPES OF LPAs
There are two types of LPAs
Property and Financial Affairs – allows your attorneys to make decisions about your home, other properties you may own, manage your bank accounts, claim benefits for you and other finances.
Health and Welfare – allows your attorneys to make decisions regarding your welfare, such as where you live, your daily routine and consent to medical treatment on your behalf. They will also be able to speak to Social Services on your behalf.
DECISIONS YOU WILL NEED TO MAKE
If you have more than one attorney you can decide how your attorneys act:-
– They can act “Jointly”- This is when they must act together and cannot act separately.
“Jointly AND Severally”- each attorney can act on their own, if necessary. If they act alone, they must still make sure that they discuss any decisions with the other attorneys.
“Jointly in respect of some matters and Jointly and Severally in respect of others” – you can specify which decisions you want all the attorneys to agree on and which they can act separately on if necessary.
– Restrictions, conditions and guidance – You can restrict what your attorneys are able to do on your behalf.
– Notification – As a safeguard, you can name someone to be notified in your LPA who will be entitled to receive notification when the LPA is registered at the Office of the Public Guardian, who can then raise concerns if they think that your attorney is not acting appropriately.
Registering an LPA An LPA must be registered with the Office of the Public Guardian before it can be used by an Attorney. Before it can be registered the LPA must be signed by yourself (whist you still have capacity), your Attorneys and a Certificate Provider, this is someone who will confirm that you understood the document and that it was signed by you without any undue influence or fraud.
ENDURING POWERS OF ATTORNEY (EPA)
Although these have now been replaced by Lasting Powers of Attorney, any EPA made before 1st October 2007 is still valid even if not yet in use. An EPA can be used while you still have mental capacity, provided you consent to its use. If you start to lose mental capacity and are unable to manage your finances, your attorneys are under a duty to register your EPA with the Office of the Public Guardian. The same above rules for registration apply.
WHAT HAPPENS IF I LOSE MENTAL CAPACITY AND HAVE NOT MADE AN LPA?
If you do not have an LPA or EPA in place your assets will be frozen and somebody, usually a relative, will have to make an application to the Court to be appointed as your Deputy. Please refer to the information below regarding Deputyship Orders.
Here at Baches we can advise on the best person to be an attorney and can ensure your LPA is drafted and registered correctly, please contact our Private Client Team for assistance.
Yes, this is dependant on what level of capacity you retain. A letter from a clinician confirming capacity may be advisable.