LEGAL EAGLE: Lasting Powers of Attorney – everything you need to know
What are Lasting Powers of Attorney?
An LPA is a legal document which allows you to appoint an individual, known as an attorney, the legal power to make decisions on your behalf should you lose capacity to make decisions in the future. These decisions can be in relation to either your property and finances or health and welfare. You must have mental capacity at the time of making an LPA.
When does an LPA take effect?
An LPA for health and welfare will come into effect from the point you lack capacity or if you decide you no longer want to make decisions for yourself.
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Hide AdAn LPA for property and finance is immediate. However, you can still manage your own finances until you decide you no longer want to make decisions for yourself or from the point you lack capacity.
What does an LPA for my health and welfare mean?
This means that your attorney can make decisions about your healthcare, treatment and living arrangements should you lose capacity to make those decisions yourself.
What does an LPA for my finances mean?
This means that your attorney can deal with all your property and financial assets.
Who can I appoint as my Attorney?
You can appoint any individual over the age of 18 if they have mental capacity. Your attorney does not need any legal experience. It can be your partner, family member, friend, or a professional. There is no limit to the number of people you can appoint as your attorney. If you have more than one attorney, you can decide whether they act jointly meaning permission from all attorneys is needed before acting, or joint and severally, meaning each attorney can act together or on their own. However, for property and finances, the attorney you choose cannot be bankrupt or have a debt relief order.
What is meant by Mental Capacity?
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Hide AdTo make an LPA, you must have mental capacity at the time you sign the document. Mental capacity is the ability to understand, retain, and weigh up information to make your own decisions and be able to communicate the decision.
Therefore, at the time of making and signing the LPA you must understand the concept of handing over responsibility of your affairs to your attorney(s).
Will I be able to make decisions about my partners finances without an LPA, should they lose capacity?
The answer to this question is no, as without an LPA you do not have the legal authority to deal with their affairs. Therefore, you would need an LPA in place to deal with their finances should they lose capacity.
What can be done if someone lacks capacity?
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Hide AdIf a person lacks capacity, they will not be able to make an LPA.Instead, an application would need to be made to the Court of Protection to appoint a deputy. A Deputyship can be used to get the legal authority to make decisions on someone else behalf. A deputy is appointed by the Court of Protection to manage the affairs of the person who does not have mental capacity. A deputy can be a friend, partner, or family member, but it can also be a professional such as a solicitor or a professional appointed by the Court of Protection.
Ben Hoare Bell LLP regularly advises people making Lasting Powers of Attorney or Deputyships. If you would like further advice, please do not hesitate to get in touch with our Court of Protection Team. To speak to a solicitor within the team, please contact us on 0191 565 3112 or email [email protected]. Visit www.benhoarebell.co.uk for further information.