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Why Do I Need A Lasting Power Of Attorney? Part Two

View profile for Helen Dexter
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An LPA (Lasting Power of Attorney)  can be signed at any time provided you have capacity. The attorney cannot use the power given by the LPA until such time as it is registered with the OPG(Office of the Public Guardian). I’ll explain the reason why you might need an LPA and the different types:

1. An LPA for Financial Decisions.

These were previously called ‘Lasting Power of Attorney – property and financial affairs’

This type of Power of Attorney gives someone you trust the legal power to make decisions in relation to your finances and property  if in the future you are unable to  or no longer wish to make decisions for yourself. You are still able to deal with and handle your financial and property matters, if you have capacity, even if the LPA has been registered with the OPG.

When your attorney/lawyer acts for you they must keep records, act in your best interests and are only allowed to make gifts on your behalf in limited circumstances.

2.An LPA for Health and Care Decisions

These were previously called ‘Lasting Power of Attorney for health and welfare’

This type of Power of Attorney gives the person or people appointed the ability to make decisions about the type of care and treatment you receive or do not receive.  It can include decisions about where you live, who visits you and end of life care.

An attorney or lawyer can only act if the LPA has been registered with the OPG and you have lost the capacity to make the decisions yourself.

When signing either type of LPA it is essential that you have a ‘Certificate Provider’.  This is someone, who is not related to you, but has known you for at least two years.  The Certificate Provider confirms that you understand what you are doing by signing the LPA, have not been forced to sign it and that they have discussed the appointment of the attorney or attorneys with you.

On 1st July 2015 the LPA forms were changed again.  This is the second time the LPA forms have been changed and this has resulted in a little confusion.

The old forms (ie the forms published immediately prior to 1st July 2015) are perfectly valid provided all parties to the document, including the Certificate Provider and the attorneys, have signed it by 31st December 2015.

When considering signing either type of LPA it is necessary to give careful thought to the people or person to be appointed, how such people are appointed and whether or not you want to give them any specific instructions regarding how they are to operate the power and authority given to them.  These are matters which need very careful consideration as it is very easy to cause problems.  Sometimes a problem may not be identified until you have lost capacity by which stage it will not be possible to solve.

With both types of LPA it is always assumed that you are able to make your own decisions unless it is established that you can not.  An attorney must always act in your best interests and provide you with as much support as possible in order that you make your own decisions for as long as possible.

If someone loses capacity and does not have an EPA or LPA then it will be necessary for a Deputy to be appointed by the Court of Protection.  You are not able to choose who will be Deputy for you and the process of being appointed a Deputy for someone is lengthy and expensive.

Making an LPA needs careful consideration and is an extremely important procedure.  A properly drafted LPA can save money and a lot of problems for your friends and family if you become ill in the future.  Tilly Bailey & Irvine  have a team of experts on hand with a wealth of experience who are able to guide clients through the process, offer advice, act as certificate provider and if need be act as an attorney if there is no one else who you wish to appoint.

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