16th February 2022
16th February 2022
Before it's too late…give someone power of attorney
A Lasting Power of Attorney (LPA) is a legal document under which one person (known as the Donor) chooses one or more person(s) (known as the Attorney) to make decisions regarding their finances and property, should they no longer be able to make decisions for themselves.
If a person is unable to manage their affairs due to mental or physical incapacity and they have not made a Lasting Power of Attorney, their assets will be frozen as no one has the authority to deal with them.
At this point someone will need to apply to the Court of Protection to be appointed as the person's Deputy. The Court will then authorise the Deputy to deal with the person's affairs.
By making a Lasting Power of Attorney, you can decide who you would like to manage your affairs, should you no longer be able to do so.
Should I have an LPA if I’m married?
Many people presume that if they are married their spouse will automatically have the rights to handle their finances and make decisions concerning their health care. This is not the case, being married does not mean that your spouse will be able to make decisions for you if you were to lack capacity in making your own decisions.
Only a legally appointed LPA can make such decisions on your behalf.
There are two types of Lasting Power of Attorney that can be made:
Property and Affairs
This document allows your Attorney to deal with your bank accounts and your property. This includes decisions in relation to selling or renting your property, paying your bills, applying for any benefits you may be entitled to and all aspects of dealing with your bank accounts, savings and investments.
This document does not allow your Attorney to make decisions about your personal welfare. You may appoint Attorneys under this document to manage your financial affairs whilst you still have capacity, as well as when you lack capacity. However, it should be noted that the document can only be used once it has been registered with the Office of the Public Guardian so that it is advisable to register the document immediately after it has been made.
This document gives your Attorney the authority to make decisions on your behalf in relation to your personal welfare. This can include whether to accept or refuse medical treatment, or to decide where you live etc. These decisions can only be taken on your behalf by your Attorney, if you lack capacity to make them yourself, for example, you may be unconscious. Again, this document must be registered with the Office of the Public Guardian before it can be used.
Who can make an LPA?
Anyone who is aged 18 or over and who has capacity can make an LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make an LPA jointly with another person, each person must make their own.
When you are choosing an Attorney, care should be taken to ensure that you choose somebody that you trust to make decisions that are in your best interests. You can appoint a family member, friend or anyone willing to act so long as they are aged 18 or over. You may also appoint a professional person. There are some safeguards built into the document to protect the Donor, including having to get an independent person to provide a certificate confirming that the Donor fully understands the nature and purpose of the LPA.
If you chose more than one Attorney, they can be appointed to act together and/or independently. You can appoint them to act together in respect of some matters and independently in others. Under the LPA, it is also possible to appoint a replacement Attorney who can step in should your original Attorney become incapable of acting.
It is imperative that specialist advice is taken to ensure that the power given accurately reflects your wishes.
To speak to one of our LPA specialist advisers, call us on 0800 590 019. BHP Law offer a free 30 minute, no obligation appointment.