You’ve heard this word being thrown around a few times, perhaps you know of someone who has one.. But what exactly are Lasting Powers of Attorney?
Lasting Powers of Attorney are legal documents in which a person can name people that they would trust to manage their finances and make decisions in relation to their health if ever they should lose mental capacity and can no longer make decisions for themselves.
There are two types of Lasting Power of Attorney (LPA), one in relation to property and financial affairs and one in relation to health and welfare.
- The property and financial affairs LPA is quite self explanatory and would cover decisions relating to managing finances and dealing with property.
- The health and welfare LPA would cover decisions such as deciding what medication or treatment you may receive if you are ill, decisions surrounding life sustaining treatment and what care home you may go into.
(You do not have to have both types of LPA, but if you do you can rest assured that all scenarios would be covered in the event that you lose mental capacity.)
The Donor and Attorney
The person giving the power of attorney is known as the Donor and the person receiving the power is known as the Attorney. You can choose more than one attorney is you wish, but it is strongly advisable to choose attorneys that you trust implicitly and you know would work well together.
Once you have chosen your attorneys, you need to decide on how you would like to appoint them and there are three methods of appointment:
- Jointly – Which means that all decisions must be made by the attorneys together and all paperwork must be signed together. This method of appointment can be very restrictive because if an attorney dies, then the LPA cannot be used any longer as they cannot make decisions together anymore.
- Jointly and severally – This is the most flexible way of appointing attorneys and tends to be the most popular method of appointment. The attorneys are able to make decisions together, but also independently. It does mean however that any one of your chosen attorneys can make decisions by themselves without liaising with the other named attorneys. This is why you should trust your attorneys implicitly.
- Jointly for some things and jointly and severally for others – This is a mixture of the above two methods of appointment. If there is a specific decision that you wanted your attorneys to make jointly i.e. all together, but everything else can be jointly and severally then you can choose this option. For example, you may state that you only wish your attorneys to act jointly when selling your house, but all other decisions can be made jointly and severally. It must be remembered though that if one attorney dies, then the house cannot be sold by them as they cannot act jointly in doing so.
Great, I’ve appointed my Attorney, So what’s next?
The donor and their chosen attorneys must each sign the LPAs, once prepared, in front of independent witnesses. When the donor signs the forms, a person known as a certificate provider must also sign the forms at the same time. The role of the certificate provider is to confirm that they believe that the donor understands the nature of the LPAs and is not under any duress to sign the documents. The certificate provider can be a person that has known you for at least two years, or a qualified professional such as a Solicitor or doctor.
Before LPAs can be used by your chosen attorneys, they must be registered with a government body known as the Office of the Public Guardian. Registration is usually the longest part of the process, as the OPG can take around 13 weeks to register documents.
Once registered, the property and financial affairs LPA can be used by the attorneys right away if the donor is happy for them to do so, even if the donor still has capacity.
“This is helpful in situations where the donor is physically incapacitated but still has mental capacity and they would like their attorneys to go to the bank for them and run errands etc.”
If the donor does not want the attorneys to make decisions until they have actually lost mental capacity, then that is also possible.
The health and welfare LPA can only be used by your attorneys once you have lost mental capacity, as it is expected that you would want to make decisions regarding your health yourself.
LPAs are precautionary measure, as we all hope that we do not lose mental capacity, but if you have them in place you can rest assured that someone can manage your affairs easily. If you lose mental capacity without LPAs in place, you cannot then make LPAs and the only option in this situation is for someone close to you to apply to the Court of Protection to be appointed as a deputy, however this is very long-winded and expensive and puts a huge burden on the people close to you to go through the process.
If you decide on setting up a Lasting Power of Attorney, we will make the process pain free.
Call us Jenna today on 01753 486 777 and let us help you.