As we age, the future of our mental capacity can become more and more uncertain and we may wonder whether we should appoint others to handle our matters on our behalf. Unfortunately, it is the case that many people become incapable of managing their affairs; hence, a document known as a Lasting Power of Attorney can be put into place.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows an individual to give someone (known as the attorney) the power to act on their behalf should they lose mental capacity. Many people steer try to avoid this matter, assuming that the chances of them needing an LPA are unlikely and, although this may be true for many people, we cannot predict what will happen to us in the future and it is always best to be prepared. This is why such a document, also known as a living will, is so valuable.
What does a Lasting Power of Attorney entail?
There are two types of LPA; one that deals with property and finances and the other with personal health and welfare decisions. Individuals can opt for either one of the two, or both. There are a number of parties involved, including the donor, certificate provider and the attorney.
The donor is the applicant who would need to appoint an attorney to act on their behalf in either their health or financial matters. Due to the significant authority that attorneys are given under an LPA, it is important to choose someone who the donor knows and is considered trustworthy. An attorney must be an adult that is mentally capable; this can be a spouse, relative, friend, or a professional adviser. A donor can appoint more than one attorney, in which case the donor would need to decide whether they are to act jointly or jointly and severally. A replacement attorney can also be appointed if an attorney dies or is unable to act.
A certificate provider is an independent person, who has either known the donor for two years or who is a relevant professional. The certificate provider signs the LPA to confirm that the donor is not under any undue influence when making the LPA. The certificate provider would also need to ensure that the donor understands the purpose of the LPA and the authority given under it.
In the event an attorney does not take on their responsibility appropriately, case law suggests that their appointment can be revoked such as in JL (Revocation of Lasting Power of Attorney) (2014) EWCOP 36, wherein a daughter failed to conduct her duties as her mother’s attorney correctly. Due to not understanding her role and using the LPA for her own benefit, the court revoked the LPA on the basis that the attorney went beyond her authority.
What is the purpose of a Lasting Power of Attorney?
Both forms of LPA serve a different purpose. The LPA for property and finance allows for an attorney to deal with a person's bank accounts and bills, buy or sell property on their behalf, and deal with their tax affairs. The donor creating the LPA can limit the attorney's authority by specifying any restrictions. LPAs for health and welfare may concern decisions relating to a person's care, such as where they live, or providing consent to medical care. A donor can give instructions to their attorney in relation to accepting or refusing life-sustaining treatment.
What happens after the Lasting Power of Attorney has been registered?
It usually takes up to 10 weeks for the document to be registered by the Office of the Public Guardian. Once registered, the attorney is given the legal responsibility to start acting in the donor’s best interest. There is a misconception that you would have to be elderly to start thinking and registering an LPA, but it is not the case and it is considered sensible and practical to register an LPA earlier on in life. Thinking about protecting yourself now can save you from hardship in the future.
Simi Gupta is a legal executive in the Wills and Probate team at Duncan Lewis Solicitors and offers advice and assistance on matters concerning Lasting Power of Attorney as well as all matters relating to wills and probate.
Contact Simi on 020 3114 1253 or at email@example.com or wills and probate director, Caroline Roche on 020 3114 1104 or firstname.lastname@example.org.
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