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Lasting Power of Attorney
A Lasting Power of Attorney (LPA) is a legal document that enables you (the donor) to appoint one or more people that you trust to help you make decisions or to make decisions on your behalf if you were unable to make them for yourself (the attorneys).
There are two types of Lasting Power of Attorney: Property and Financial Affairs, and Health and Welfare.
A Property and Financial Affairs Lasting Power of Attorney allows elected attorneys to help manage bank or building society accounts, pay bills, collect benefits or a pension, or sell property.
Banks, financial institutions, utilities companies and any other organisations connected with property or finances will want to see a registered LPA. Without an LPA these organisations may not let your loved ones manage your affairs and may even freeze your assets.
The Health and Welfare Lasting Power of Attorney allows attorneys to deal with your health and care decisions, such as day-to-day care, medical care, moving into a care home, and life sustaining treatment.
Should you need care, a health and welfare LPA will help your attorneys ensure that they get to decide how and where your care is provided. Without an LPA your family may not have any say in the matter and the local authority (social services) may decide.
Both Lasting Powers of Attorney have only been in existence since 1st October 2007 when they replaced the previous version, called Enduring Powers of Attorney (EPA). Please be aware that whilst an EPA created before 1st October 2007 is still valid, it only covers your financial affairs.
What happens if I do not have an LPA?
If you do not set up an LPA for your financial and health decisions, initially someone from the Court of Protection or Social Services may be appointed to make decisions on your behalf. Your loved ones will then need to apply to the Court of Protection for a Deputyship, to essentially grant the same powers as an LPA. This process can be costly and time consuming, so it is beneficial for you and your family to plan ahead and put a LPA in place before you lose mental capacity.
Your Lasting Powers of Attorney (LPA) for Property and Financial Affairs and Health & Welfare must each be registered with the Office of the Public Guardian (OPG) before it can be used. Without registration with the OPG they are not valid. The Office of Public Guardian is a government body, they charge a Registration Fee of £82 for each LPA submitted for Registration. However, there are exemptions for people on some means tested benefits and if the donor earns less than £12,000 before tax then you can get a discounted price.
It’s really important to plan early for your future, especially if you have the early signs of memory loss. Having a Will in place before you lose capacity will ensure that your wishes are respected.
If you haven’t planned for the future and you lose capacity, it is possible under the 2005 Act for your loved ones to apply to the Court of Protection for a ‘statutory will’ to be prepared. The Court will make the Will on your behalf and must consider any past or present wishes, feelings, beliefs, and values that would potentially influence a decision you would make if you had capacity.
The Court is unlikely to execute a statutory Will if there is a Will already in place unless there is a significant change in circumstances.
It would be much more beneficial for you and your family if you plan ahead before you lose capacity.
We would always recommend that you hire a professional Will writer to make a Will on your behalf.
Here is some more information that may be useful for you.
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