What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document by which you appoint someone whom you trust (your Attorney) to make decisions on your behalf during your lifetime about things such as your healthcare or finances. Unlike an ordinary Power of Attorney, an LPA remains valid even if you become mentally incapable through accident, illness or mental confusion.
But I can manage my own affairs currently.....
Many people mistakenly assume that a Lasting Power of Attorney is a consideration for later life or when they “feel” they are becoming unable to manage their own affairs. However, anyone at any age can have an accident or illness affecting their capacity.
The benefit of making an LPA now is that if at some stage in the future you suddenly become unable to deal with your affairs, your Attorney(s) will be able to step in and act on your behalf without delay.
Sadly, if you wait until you are losing of have lost mental capacity you will not be able to choose who acts for you. If you do not have an LPA and you become mentally incapable, it is too late to prepare an LPA and an application must be made to the Court’s Public Guardianship Officer for the appointment of a Deputy to manage your affairs and make decisions on your behalf. This means that you will have no say in the decision. In addition, applying for a Deputyship Order is a longer and more costly process than preparing a Lasting Power of Attorney.
You may be in good mental health when you sign the documents, but you will have the peace of mind knowing that if something did happen you have appointed people you trust to deal with matters for you.
There are Two Different Types of Lasting Power of Attorney
Personal Welfare LPA This allows your Attorney to make decisions on your behalf about your personal welfare such as where you live, medication, what you eat, who visits you and possibly giving or refuse consent to medical treatment. Your attorney can only act on your behalf when you have lost the capacity to make such decision for yourself.
Property and Affairs LPA This allows your Attorney to make decisions on your behalf about your property, finances and business affairs generally. With your consent it can be used whilst you still have full mental capacity if you are either temporarily or permanently unable to manage your own finances or on occasions where you just need some help.
You can choose whether to make one or the other or both.
Who can be an attorney?
The Attorney must not only be someone you can trust completely but must also be available to deal with things on your behalf and be prepared to take on the responsibilities involved. You can choose more than one Attorney and you can also appoint a replacement to step in if your original attorney becomes unable to act.
How do I prepare Lasting Power of Attorney?
You need to choose your attorneys, fill in the Lasting Power of Attorney forms and register them with the Office of the Public Guardian. Anyone can complete these forms but there can be a benefit to having them drafted by a professional Private Client Practitioner.
What happens if I don’t prepare a Lasting Power of Attorney?
If you do not have an LPA and you become mentally incapable, it is too late to prepare a LPA and an application must be made to the Court’s Public Guardianship Officer for the appointment of a Deputy to manage your affairs and make decisions on your behalf. This means that you will have no say in the decision. In addition, applying for a Deputyship Order is a longer and more costly process than preparing a Lasting Power of Attorney.
Benefits of Professionally drafted Lasting Powers of Attorney
Clarity - Legal documents and guidelines for preparing them can be lengthy and sometimes confusing. A professional not only understands the requirements and complexities but can clearly explain the documents and the authority that you are giving to attorneys. They can also answer any queries that you have about the scope of the documents and the process of registration.
Experience - An experienced practitioner will have in depth knowledge gained from preparing dozens of LPAs covering many different scenarios. The benefit of this experience can be invaluable when ensuring the documents cover all of your requirements.
Bespoke Documents – A professional will have access to approved clauses and be able to draft clauses tailored to your own specific circumstances and wishes.
Certify - As a professional, a Private Client Practitioner can certify that the person making the Lasting Power of Attorney document understands it, the scope of the authority it gives to attorneys and that they are not placed under undue pressure or influence. This can be especially useful if there is any risk of capacity being disputed.
Ease Administration Burden – Experienced Administrators will undertake the laborious task of contacting all attorneys, explaining the process, obtaining signatures in the right order and dealing with submission, registration and certification process. They are alert to the common errors and omissions lay people often make that render LPAs invalid.
Ensure the Lasting Power of Attorney actually lasts – an experienced practitioner will look beyond the short term and will anticipate risks and future scenarios that many lay persons fail to consider. This means that your document is less likely to need to be revoked and replaced in the future.
The need to pay legal fees sometimes puts people off having the documents professionally drafted. It is worth remembering that Lasting Power of Attorney documents are very powerful as they authorise to Attorneys to act and make decisions as if they are you. It makes the investment of time and money spent on thorough preparation worthwhile.
At Barwells we can help with all aspects of creating LPAs. Call today to find out more: 01323 899331