If you are concerned about either yourself or a loved one losing the ability to manage financial or welfare decisions, you may want to consider making a Lasting Power of Attorney (LPA).
What are Lasting Powers of Attorney?
What are the different types of Lasting Power of Attorney?
There are two types of Lasting Power of Attorney (LPA):
Property and Financial Affairs LPA – this allows you to nominate one or more people to make decisions regarding property and finances on your behalf. You can stipulate whether this comes into force immediately, or when you become unable to make decisions yourself. You are also able to specify what powers your nominated Attorneys have.
Your nominated Attorneys can make small gifts of money or property if you or the Court give them authority, but this is limited. If they are making investment decisions, they should seek specialist advice.
Health and Welfare LPA – this allows you to nominate one or more people to make decisions on your welfare, for example medical treatment. This LPA can only be used if you are unable to make decisions for yourself. For example, if you were in a coma, your representative can make decisions for you, but if you recover, then you regain your own decision making.
You can nominate one or more Attorneys and decide whether they can act alone or must act together on decisions. If you choose for Attorneys to act together, the Lasting Power of Attorney will fail if one of the Attorneys dies or loses the capacity to manage your affairs themselves. To prevent this, you should consider nominating a replacement Attorney.
How many Attorneys can you have?
You can appoint up to four Attorneys in respect of each Lasting Power of Attorney, and you can choose whether you wish them to be able to make decisions separately or whether they have to agree unanimously. It is unusual to have as many as four Attorneys, one or two is the norm.
Who can be your Attorney?
Your Attorneys must be over the age of 18, not be an undischarged or interim bankrupt and must have mental capacity themselves. They do not need to have any legal training, and they should be people that you trust.
Setting up a Power of Attorney, do you need a lawyer?
Lasting Powers of Attorney have to be registered with the Office of the Public Guardian before they are valid, and we advise that these are registered as soon as they are prepared in order that they are ready for use in the event that the worst happens, and they are needed quickly.
You can fill out the LPA forms yourself, or with the help of a solicitor. Taking the advice of a specialist Power of Attorney lawyer at an early stage avoids any complications at a later date, especially if your affairs are complex.
What happens if I do not have a Lasting Power of Attorney?
If you are married or in a civil partnership, you may assume that your spouse would be able to take control of your finances and make decisions regarding your healthcare if you lose the capacity to do so, but unfortunately, this is not the case.
If you are unable to make your own decisions and do not have a valid Lasting Power of Attorney in place, someone will need to apply to the Court of Protection, who will:
- Decide whether you have the mental capacity to make decisions
- Make an order relating to Health and Welfare or Property and Finance decisions for someone without the mental capacity
- Appoint a Deputy to manage the affairs of someone who lacks mental capacity
Choosing Simper Law to Act as Your Attorney
We are prepared to act as your Attorney if you have nobody else that you can trust to do so.
If we are not appointed as Attorney, we can also act as certificate provider as part of the document process.
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