A GUIDE TO LASTING POWERS OF ATTORNEY

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A GUIDE TO LASTING POWERS OF ATTORNEY

OUR GUIDE TO LASTING POWERS OF ATTORNEY AIMS TO PROVIDE USEFUL INFORMATION AND FRIENDLY ADVICE IN A CLEAR AND SIMPLE WAY.

CONTENTS

02 Introduction03 Lasting Power of Attorney - The Basics04 What is Mental Capacity?06 When is your Lasting Power of Attorney valid?07 Completing the Lasting Power of Attorney Forms11 Registering the Lasting Power of Attorney 12 What Happens If I Don’t Make Power of Attorney?

INTRODUCTION

A LASTING POWER OF ATTORNEY (LPA) IS A LEGAL DOCUMENT THAT ALLOWS YOU TO PLACE THOSE YOU TRUST IN CHARGE OF YOUR FINANCIAL AFFAIRS OR HEALTH AND CARE DECISIONS. THE DONOR APPOINTS ATTORNEYS TO HANDLE THEIR AFFAIRS IN THESE MATTERS.

THESE DOCUMENTS ARE PUT IN PLACE WHEN THE DONOR FEARS LOSING MENTAL CAPACITY AND THEY WISH TO ENSURE THAT THEIR AFFAIRS ARE IN ORDER AND PLACED WITHIN THE HANDS OF SOMEONE THEY TRUST.

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LASTING POWER OF ATTORNEY - THE BASICS

WHO IS THE DONOR?The Donor is the person making the application to the Office of Public Guardian to register an attorney to deal with their affairs.

WHO ARE THE ATTORNEYS?The attorneys are those whom the Donor appoints to handle their affairs. The attorneys can be anyone you trust from family members to friends.

The role of an attorney involves a great deal of power. It is therefore important that you think hard about who you would like to be an attorney and also give the person you ask time to think about the role. The person you ask needs to make sure they are making the right decision.

All decisions made by attorneys must be in the best interests of the donor and they must:

• Do everything to encourage the donor to participate

• Consider the donor’s past and present feelings

• Consider any beliefs and values that could be influential to any decision

• Talk to others such as family members who know of the feelings, beliefs and values of the donor and who can suggest what might be in their best interests

• Remember the right to privacy of the donor

WHY PUT IN PLACE A LASTING POWER OF ATTORNEY?An LPA allows the attorney appointed legal authority to make decisions with regard to both your finances and health and care on your behalf.

You do not need to lose mental capacity for an LPA to be put in place. The financial decision LPA can be registered and put in place despite the donor still having mental capacity. However, the health and care LPA is only effective once the donor has lost all mental capacity to make these decisions for themselves.

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WHAT IS MENTAL CAPACITY?

Mental capacity means that someone is able to make their own decisions in sound mind.

In the future, you may be unable to make decisions for yourself due to being diagnosed with dementia or you could be made unconscious in an accident. In these scenarios, someone else then needs to make decisions on your behalf. The decisions a third party may need to make for you include financial (such as paying your mortgage, bills etc.) or health and care (what type of medical treatment you should receive).

Capacity can change on a day to day basis and thus it is important that, should you ever lose mental capacity, you feel safe that your affairs will be dealt with in the correct manner.

THE FORMS

There are two types of Lasting Power of Attorney that can be put in place:

1. Financial Decisions; and

2. Health and Care Decisions

FINANCIAL DECISIONS:This can be put in place even when the donor still has mental capacity. The attorney can then make decisions for you such as:

• Buying/selling a property;

• Paying the mortgage;

• Investing money;

• Paying bills etc.

When this LPA is registered, the attorney must keep accounts and make sure the donor’s money is kept separate from their own.

As the donor may still have mental capacity when this is in place, they can request regular updates as to how your funds are spent and how much income they have. If mental capacity is then lost, this information can be sent to your solicitor or a family member.

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HEALTH AND CARE This covers decisions where the donor has completely lost mental capacity and decisions need to be made in relation to their healthcare and personal welfare.

The attorney can make decisions including:

• Where the donor should live;

• Medical treatment to be provided;

• What the donor should eat etc.

The donor is able to restrict the types of decisions made by the attorney. The attorney can make all decisions on your behalf or only certain ones.

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An LPA is only valid if you have:

• The mental capacity to set it up; and

• You have not been coerced or put under pressure to put it in place.

To provide a safeguard, the forms must be signed by a certificate provider who confirms that you understand the purpose of the LPA and that you haven’t been put under pressure to sign it. The certificate provider must be someone who knows you well or a professional, such as a doctor or solicitor.

WHEN IS YOUR LASTING POWER OF ATTORNEY VALID?

SECTION 1 - THE DONORPrior to completing the forms, the donor must be aged at least 18 years and have mental capacity (‘the ability to understand a specific decision at the time it needs to be made’). There may be complications when making the application if the donor:

• Lives outside England and Wales;

• Has a property outside England and Wales and is making an LPA for financial decisions;

• Is planning to move away from England and Wales

There may also be complications if the donor has been bankrupt or subject to a debt relief order. If this is the case, any attorneys appointed will not have power over all property owned by the donor.

SECTION 2 – THE ATTORNEYS The Donor must appoint at least one attorney. However, there is no limit as to the number of attorneys who may be appointed.

If more than one attorney is appointed, the donor must decide whether they wish the attorneys to act:

• Jointly, meaning they work together on all matters; or

• Jointly and Severally, where they may act together or separately as they choose.

When selecting the attorneys, it is best to think about:

• How many you want to appoint;

• Whether they have the ability to work together if more than one is appointed;

• Whether you trust the attorneys to act in your best interests.

COMPLETING THE LASTING POWER OF ATTORNEY FORMS

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A replacement cannot temporarily act and can only act where they are permanently replacing an attorney who is no longer able to make decisions due to the reasons above.

SECTION 5 – WHEN CAN ATTORNEY’S MAKE DECISIONS (FINANCIAL LPA ONLY)

There are two options:

1. As soon as the LPA is registered

With this option an attorney can make the decisions for the donor. This option allows the donor to have full control over their finances.

2. Only when the Donor no longer has mental capacity

This option allows the donor to have full control of their finances while they still have mental capacity. When mental capacity is then lost, the LPA will be ready for the attorneys.

SECTION 5 – LIFE SUSTAINING TREATMENT (HEALTH AND CARE LPA ONLY)When completing the Health and Care LPA, this section is compulsory.

‘Life Sustaining Treatment’ means care, surgery, medicine or help from doctor’s that is needed to keep someone alive.

The donor must either choose:

1. Option A: if they ever require life sustaining treatment, the attorney can speak with a doctor as if they were the attorney. The attorney can therefore make the overall decision; or

2. Option B: the doctor makes the decision regarding life-sustaining treatment.

SECTION 6 – PEOPLE TO NOTIFYThe donor can choose up to five people to notify. These should be people whom the donor knows well and who would be willing to raise concerns regarding the LPA. Those notified can object to the LPA if they believe the donor was under pressure to make it.

SECTION 7 – PREFERENCES AND INSTRUCTIONSThis section is where the donor can give the attorney instructions as to how they wish them to act. However most leave this blank. Should you wish to leave preferences or instructions it is best to seek legal advice as to what is appropriate.

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Attorneys can be anyone who is aged 18 years and above and has mental capacity. They can include:

• Your wife, husband, civil partner or partner

• A family member

• A close friend

• A professional

All attorneys must sign the LPA confirming they agree to their appointment.

SECTION 3 – HOW THE ATTORNEY’S ACTIf you choose more than one attorney, you must choose how they act:

• Jointly

• Jointly and Severally

• Jointly for some decisions, and Jointly and Severally for others

Jointly and Severally is the advised option as this allows attorneys to make simple or urgent decisions quickly and easily without asking the other attorneys. Additionally, if an attorney can no longer act for some reason, the LPA will not be cancelled and will simply continue.

SECTION 4 (OPTIONAL) – REPLACEMENT ATTORNEY’SThis section is optional and the donor is not required to appoint replacement attorneys.

Replacement attorneys are those who step in if one of the original attorneys if they can no longer act.

A Replacement steps in should one of the attorneys:

• Die

• Loses mental capacity

• Decides they no longer wish to act

• Was your wife, husband or civil partner but your relationship has ended legally

• Becomes bankrupt or subject to a debt relief order (only applies in relation to financial LPA)

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SECTION 8 – LEGAL RIGHTS AND RESPONSIBILITIESAll those involved in the LPA i.e. donor, attorney and certificate provider must read this section prior to signing.

SECTION 9 – SIGNATURE: DONORBy signing Section 9, the donor is entering in to an agreement with the attorney and will be legally bound by all information in the form up to this point.

The signature of the donor must then be witnessed by someone who is over the age of 18 and independent to the LPA.

SECTION 10 – SIGNATURE: CERTIFICATE PROVIDERA Certificate Provider is an impartial person who signs the LPA confirming that the donor understands what they are doing and that they are not being forced into making the LPA.

Those who can be a Certificate Provider include:

• A friend, colleague or someone who has known the donor well for at least two years

• Your doctor, lawyer or someone with the professional skill to judge whether you understand the application

• ‘People to Notify’, any person named within Section 6

SECTION 11 – SIGNATURE: ATTORNEY AND/OR REPLACEMENT ATTORNEY The attorney and replacement attorney named within the LPA must sign this section. Their signatures must be witnessed again by someone aged 18 years or above and independent to the LPA.

Upon signing this section, the attorneys enter in to a legal agreement with the donor and are bound by the LPA.

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Once completed, the LPA cannot be used until registered with the Office of Public Guardian (OPG).

Sections 12-15 of the LPA Forms cover who is to register the LPA.

Registration can be made by the donor or an attorney. Whoever is registering the LPA must then sign Section 15 confirming this. Once all 15 Sections have been completed, the LPA must be sent to the Office of Public Guardian along with a cheque for £110 per form to be registered.

It can then take around six months for the LPA to be registered.

Upon registration, the OPG will send the stamped and sealed LPA back to the person who registered it for use.

REGISTERING THE LASTING POWER OF ATTORNEY

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If, in the future, you lose mental capacity and you have not made a Lasting Power of Attorney, it may be necessary for the Court of Protection to become involved.

The Court of Protection can:

• Decide whether an individual has mental capacity to make a decision

• Make an order relating to the welfare or property and financial affairs of an individual who lacks mental capacity

• Appoint a deputy to make decisions on behalf of an individual lacking in mental capacity.

A deputy holds a role similar to that of an attorney. A person who wishes to make decisions on your behalf can apply to be appointed as a deputy. The Court then makes the final decision.

WHAT HAPPENS IF I DON’T MAKE POWER OF ATTORNEY?

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