Your LPA questions answered
If you are up to date with recent news, you may be aware of a legal document known as an LPA, or ‘Lasting Power of Attorney’, since the unfortunate case of Frank Willett was brought to light.
Whilst what Frank had in place was something called a ‘Enduring Power of Attorney’ (EPA) – a document that was replaced in 2007 by an Lasting Power of Attorney – this story may nevertheless have raised some questions over whether taking out an LPA is a good idea.
We felt it important reiterate the benefits of LPAs and explain why, in the face of rising cases of dementia in the UK, it could be the most important decision you make for your future.
First, let’s take a look at some of the most commonly-asked questions about LPAs:
What is an LPA (Lasting Power of Attorney)?
In simple terms, an LPA is a legally binding document that lets you choose a person (or people) you trust to make decisions for you, often in the event that you lack the ability to make your own decisions.
This person is referred to as your ‘attorney’, and you can choose what decisions they are allowed to make in relation to your property and finances or health and welfare.
There are therefore two distinct types of LPAs that cover each of the above.
Property and finances LPA
This type of LPA covers responsibility for things like paying your bills, collecting your income and benefits, or selling your house. You can be specific about this if you want to, and can limit the decisions your attorney is allowed to make.
Health & welfare LPA
As implied by the name, this type of LPA is specifically related to your well-being. It includes decisions on whether you wish to accept or refuse life-sustaining treatment, and in which circumstances life-support machines could be switched off for example.
It also includes decisions about your day-to-day care and where you will live if your health deteriorates.
You can choose to make both types of LPA or just one, and it’s up to you whether you wish to appoint the same person as an attorney for both of them, or split the responsibility between two different people.
Who should you choose to be your attorney?
When choosing who should be your attorney, think about how well you know them and how well they look after their own health and finances. Importantly, you should choose somebody you can trust to be your attorney. This might be a family member or friend. Some people choose to appoint a professional such as a solicitor, particularly when it comes to property and finances.
Your attorney needs to be 18 or over and have the mental capacity to make their own decisions and if you’re making a property and finances LPA they cannot be bankrupt or subject to a Debt Relief Order.
When does an LPA become legally-binding?
Your attorney(s) won’t be able to make decisions for you until your LPA has been registered at the Office of the Public Guardian (OPG). This Government body exists to protect people who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance.
What if I still have the mental capacity to make my own decisions?
If you have an LPA drawn up but are still a long way off from needing to pass on your responsibilities for decision-making, you may be wondering whether you still have the right to decide things for yourself.
The most common purpose of an LPA is to allow people to make decisions for you in the future, if you can no longer make them yourself. It doesn’t mean that your attorney will ‘take over from you’ as soon as you fill in the form.
The simple answer to this is yes, you do. The most common purpose of an LPA is to allow people to make decisions for you in the future, if you can no longer make them yourself. It doesn’t mean that your attorney will ‘take over from you’ as soon as you fill in the form.
When it comes to a health and welfare LPA, your attorney cannot make any decisions until the point you cannot make them yourself.
However, with a property and affairs LPA, this allows you to say whether you want your attorney to be able to act while you still have capacity. Again, this does not mean that they will take over from you straight way – you will also be able to act as long as you are mentally able to, but will benefit from a helping hand in managing your finances should you wish.
What exactly is meant by ‘Mental Capacity’?
According to UK law ‘mental capacity’ means a person’s ability to make their own choices in relation to a specific decision. It is entirely possible for someone to have sufficient capacity to make simple decisions, but not more complicated ones.
In England and Wales the Mental Capacity Act says that a person lacks capacity to make a decision if they have an ‘impairment of or disturbance in the function of their mind or brain’ (either temporary or permanent), and cannot therefore do one or more of the following*:
- Understand the information relating to this particular decision (including its benefits and risks)
- Retain the information for long enough to make this decision
- Weigh up the information involved in makingthis decision
- Communicate their decision in any way.
What are the benefits of having an LPA?
- Reassurance – If you are unable to make a decision for yourself in the future, the person you choose will make these decisions for you, giving you reassurance that everything is covered
- A trustworthy attorney – Making an LPA prevents a stranger, or someone you may not trust, from having the power to make important decisions on your behalf
- Save friends and family from future uncertainty – Making an LPA now will make things easier for your family and friends in future as they will be certain of your wishes
- Prevent potential expensive action – Without an LPA It will be more expensive, difficult and time-consuming for friends and family to get the authority to act on your behalf when the time comes. Someone may need to apply to the Court of Protection to become your deputy – a costly, arduous process.
I have an EPA in place, should I change this to an LPA?
Any EPA made before October 1 2007 is still valid and can still be registered and used, so you don’t necessarily have to make an LPA too.
However, as an EPA only covers finance and property decisions, you may want to consider taking out a health and welfare LPA to cover decisions about your future care and treatment too.