It is an unfortunate truth that many of us will be affected by physical or mental incapacity at some stage in our lives. The Alzheimer’s Society estimates that in 2021 there will be 1 million people suffering from dementia in the UK and this is a figure that is continuing to rise due to increasing life expectancy. Having Lasting Powers of Attorney (LPA) in place will provide you with peace of mind and will make life far easier for both you and your loved ones.
What is an LPA?
An LPA is a legal document that allows you to choose someone to act as your attorney to make decisions regarding your health and welfare, or property and financial affairs, or both once you lose capacity. This must be done whilst you still have capacity.
Who can act as my Attorney?
You can appoint anyone that you trust as your attorney as long as they are aged 18 or over and are not bankrupt. You can appoint one or more attorneys and it is also possible to appoint replacement attorneys. This is often encouraged by your solicitor as it provides further security if your attorney should be unable or unwilling to act on your behalf.
What decisions will my Attorney make?
The decisions your attorney can make will depend on which document you have prepared and what decisions you have allowed them to make. It is common for the attorneys to be given general authority to act on your behalf as this will allow them to make all decisions that you would have done if not for your incapacity.
In general, a Health and Welfare LPA allows attorneys to make the following decisions (please note this list is not exhaustive):
- Where you should live;
- Your diet;
- Medical treatment; and
- Who you should have contact with.
In general, a Property and Financial LPA allows an attorney to deal with the following (please note this list is not exhaustive):
- Paying bills;
- Dealing with property;
- Investing; and
- Opening and closing bank accounts;
What decisions can my Attorney not make?
Although your attorney may have the authority to make small gifts (for example for birthdays or anniversaries), if your attorney wishes to make a substantial gift then they must first get authority from the Court of Protection.
In addition, your attorneys do not have the power to delegate their authority in any way, therefore if you foresee your attorneys having to, for example, manage your investments that should be managed by an investment manager, then this should be included as a specific authority within your LPA in order to allow your attorney to instruct that manager and therefore delegate their authority.
What happens if I lose capacity but do not have an LPA?
If you lose capacity and do not have an LPA in place then an application will need to be made to the Court of Protection. This application will be to appoint a deputy to act on your behalf. The application process is both time-consuming and costly, it can take up to six months for a deputy to be appointed and no one will be able to assist you with your matters during this time, something which can cause both stress and pressure for your family which could have been avoided.
If you wish to speak with a solicitor regarding LPA, please contact Farleys’ private client team on 0845 287 0939 or contact us by email.