Creating a will ensures that after death our wishes are followed. However, if in later life we are no longer able to make our own decisions, how do we ensure our choices are followed? Whilst mental incapacity is a scenario that many of us would rather not think about, the reality of our ageing population is that incidences of Alzheimer’s disease and Dementia have dramatically increased within our society.
It is a commonly held belief that in such an eventuality our loved ones would be able to support us to manage our affairs. However, without the appropriate legal authority, our friends and family would be unable to carry out even the most basic actions on our behalf.
A Lasting Power of Attorney (LPA) is a legal document which enables you, as the donor to authorise someone, known as an attorney to make decisions on your behalf in the event that you lack capacity in the future. You can nominate friends, family members or professionals to act on your behalf. There is no restriction on the number of attorneys you can appoint, but attorneys must be over the age of 18. You can provide guidance and limits for your attorneys within the LPA itself, in order to make sure that your wishes are followed.
There are two types of LPA:
1) Property and Finance
2) Health and Welfare
The Property and Financial Affairs LPA allows your attorney(s) to make financial decisions, such as accessing bank accounts, paying care fees and selling property/assets on your behalf. Whereas the Health and Welfare LPA allows your appointed attorney(s) to make decisions regarding your care and treatment.
A LPA can only be created by an individual over the age of 18, with the necessary level of mental capacity. A LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. It currently costs £110.00 to register a Lasting Power of Attorney, and the registration process takes approximately eight to ten weeks. In some circumstances the registration fee may be reduced, or waived by the OPG.
Once a LPA has been registered, attorneys must act according to the law and take into consideration the Mental Capacity Act 2005 and Code of Practice. Attorneys have a duty to act in the best interests of the donor, and according to the instructions set out in the LPA.
Attorneys have limited powers to make gifts from the donor’s estate; however, any large gifts need the approval of the Court of Protection. Attorneys are regulated by the OPG, and should keep their own records and receipts for transactions carried out on the donor’s behalf. In the event that an attorney is thought not to have acted in the donor’s best interests, the Public Guardian can apply to the Court of Protection for their removal.
Executing a LPA ensures that our wishes will be carried out and our affairs will be left in the hands of those we trust. Where an individual has lost mental capacity and has not executed a LPA, a deputy may be appointed by the Court of Protection. Initial applications for deputyship cost £400.00, and the process is usually much longer and more complicated. Court appointed deputies must account to the OPG yearly, and are subject to on-going supervision fees.
Applying for a LPA can be a daunting, complicated and technically challenging process. The Leicester Mental Health and Capacity team at Duncan Lewis Solicitors have a professional insight into the workings of the Office of the Public Guardian, the organisation which is responsible for registering a LPA and supervising Deputies. The Leicester team are able to provide expert legal advice and specialist assistance regarding the creation of LPAs and applications for deputyship.
Author Sarinder Malhi is a Caseworker in the Mental Health and Court of Protection department in the Duncan Lewis Leicester Branch. Sarinder is committed to assisting individuals detained under the Mental Health Act including those detained in secure forensic institutions within the East Midlands Area. Sarinder undertakes all aspects of case work and is able to comprehensively advise clients in all aspects of their case leading up to, and in preparation for their Mental Health Tribunal hearings. Sarinder also provides expert representation at Hospital Managers Hearings and Care Programme Approach Reviews. Through her meticulous and diligent approach to work Sarinder is proficient in assisting her clients in achieving the best possible outcome in their cases.
To speak to a member of the Mental Health team on any issue regarding Mental Health call Duncan Lewis on 0333 772 0409.