Many of us find it difficult to think about the possibility that we will lose mental capacity, and how we will manage our affairs if it happened. Unfortunately, with 850,000 people with dementia in the UK and this number set to rise to one million by 2025, it is something that should be given serious consideration as you can act now to save time, money and stress for your relatives in dealing with your affairs if you were to lose capacity.
A Lasting Power of Attorney (LPA) is a legal document which appoints family members or friends to make decisions on your behalf about your financial affairs or about health and welfare in the event that you no longer have the mental capacity to do so yourself.
An LPA must be made by someone who still has mental capacity, so it is important that you make it well in advance and not leave it until the last minute (especially since the Office of the Public Guardian who register LPAs can take many months to process applications). If you were to lose mental capacity and don’t have an LPA in place, your relatives can face a long and expensive process in applying to the court for permission to manage your affairs.
There are two types of LPA – ‘property and financial affairs’ and ‘health and welfare’. If you wanted to appoint attorneys to manage both of these aspects of your affairs, you would need to make two separate LPAs.
Another key difference is that a property and financial affairs LPA can be used while the donor (the person giving the power) still has capacity if they so choose, while a health and welfare LPA can only be used once they have lost capacity.
You can choose one or multiple attorneys so long as they are age 18 or over, not bankrupt and willing to act on your behalf. You can also appoint ‘substitutes’ in the event that your first choice of attorney is unwilling or unable to act.
If you appoint more than one person, you must decide if they will make decisions jointly (which means they all have to agree on each decision) or jointly and severally (which means they can act together but can also act on their own). You could also allow them to act jointly in respect of some matters and severally in respect of others.
To make an LPA you need to complete the LPA form, sign it and register it with the Office of the Public Guardian. To protect your interests, the form must also be signed by someone independent – a “certificate provider” – to certify that you understand the LPA and have not been pressurised into signing it. This can be a professional, such a solicitor, or someone who has known you for a number of years and is unconnected to the other parties to the LPA document.
You do not have to seek legal advice or use a solicitor to create an LPA – the government provides an online tool to fill out LPA forms – but it is an important legal document and advice from a solicitor with experience of preparing them can alleviate the time and stress involved and ensure that your LPA is properly prepared and registered, ready for use in the event it becomes necessary.
