What is an LPA?
An LPA is a legal document that enables you to appoint one or more trusted people (known as attorneys) to manage your affairs and make decisions on your behalf in the event that you lose mental capacity. There are two different types of LPA: property and financial affairs LPA and health and welfare LPA.
LPAs are important in the event that you may not be able to express how you want your financial affairs and/or health and welfare to be taken care of. An LPA allows you to choose a person(s) to make these decisions on your behalf and in your best interests.
What happens if I lose mental capacity without an LPA in place?
Mental capacity is the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must fully understand the decision you need to make, why you need to make it, and the likely outcome of what you decide.
If you were to lose the capacity to manage your affairs without having put in place an LPA, your loved ones would not be able to make decisions about your property and financial affairs or your health and care.
Without the authority that LPAs provide, it can make it very difficult for others to help you when needed, often resulting in the need for an application to be made to the Court of Protection to request this authority. The process of becoming a deputy is more time-consuming and expensive than an LPA.
What are the advantages of putting in place an LPA?
Lasting powers of attorney (LPAs) can help to make things easier for you and the people you are close to. It can also help you to know that you have chosen people you trust to make decisions for you when you need them to.
There are many benefits of having an LPA in place.
- Control over the choice of attorney
When you make an LPA, you can choose whom you would like to deal with your affairs when you are no longer able to do so yourself. You can choose whether to appoint one or more attorney(s) and specify how joint attorneys are to make decisions.
Without the authority that LPAs provide, it can make it very difficult for others to help you when needed, often resulting in the need for an application to be made to the Court of Protection to request this authority. This can be a lengthy and costly process.
In the case of a deputyship application, the deputy is chosen by the Court and not by you. You would no longer have the capacity to decide whom should be appointed as your deputy and the court would have the final say in this decision. If no family members or friends put themselves forwards to act as deputy or if there were to be a disagreement as to whom should be appointed, the court might decide to appoint a neutral professional deputy.
- Control over the extent of attorney’s powers
When you make an LPA, you can include preferences or instructions within the LPA form to guide your attorneys as to how you would like them to exercise their powers.
For example, in a financial LPA, you could specify that your attorney is not to sell your home unless, in your doctor’s opinion, you can no longer live independently. You could also include instructions about investments.
In a health and care LPA, you could specify, for example, that you wish to live close to a particular relative or include instructions about dietary requirements or personal care requirements.
It currently costs £82 to register an LPA with the OPG compared with £365 for an application to the Court of Protection to appoint a deputy. In addition, your Solicitor’s fee for dealing with a deputyship application would typically be much more than to create and register an LPA.
- Peace of mind
Putting in place one or both types of LPA whilst you have capacity can give you peace of mind that your affairs will be taken over by trusted people in the event that you are no longer able to make the relevant decisions yourself. You can also have peace of mind that your loved ones will be spared a lengthy court application in order to take over your affairs at an already difficult time.
Once an LPA has been registered with the Office of the Public Guardian (OPG), it is available for use immediately so, in the event of a sudden or unexpected loss of capacity, your attorney(s) would be able to step in immediately to take over the management of your affairs and make decisions on your behalf.
Are there other ways to plan ahead?
Lasting powers of attorney are not the only way to plan for the future. You can make arrangements, choices, and decisions about your property and finances by making a Will.
A Will is a legal document that allows you to express your wishes about the people you want to inherit your money, property, and possessions (your estate) after you pass away. Find out more information about Wills via our services page and in our article Reasons You Need a Will.
Need advice on future planning?
At Holmes Family Law, we understand that making a Lasting Power of Attorney can be a daunting task. We have an experienced team on hand to make the process straightforward and worry-free. Contact our Wills, Trusts and Probate team, who will be able to guide you through the options and advise you on the best way forward.