Powers of Attorney, Court of Protection & Deputyship
If you’re worried about losing the ability to manage your financial affairs finances or who will make decisions about your health or welfare either now or in later life, you may want to consider making a Lasting Power of Attorney (known as an ‘LPA’)
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Keys facts about Lasting Powers of Attorney (LPA)
- An LPA appoints an Attorney(s) to make decisions on your behalf.
- It records your wishes and what powers your Attorney(s) should be granted
- If you lack the required capacity to sign an LPA then an application can be made on your behalf to the Court of Protection for them to appoint a ‘Deputy’ in respect of your ‘Property and Affairs’ and/or ‘Health and Welfare’.
There are two types of Lasting Powers of Attorney (LPA) …
An LPA is a legal document that is prepared by or on behalf of someone who may need assistance in managing their financial affairs or relation to decisions about their health and welfare. People are free to sign either document or can choose to sign both.
A ‘Health and Welfare’ LPA
A ‘Health and Welfare’ LPA allows you to choose one or more people to be your Attorney(s)make decisions about you personally. It can include decisions about your day to day life including care and support – subject to any restrictions or guidance you want to include. It can also enable you to give your Attorney(s) the ability to give or refuse consent to life sustaining treatment.
PLEASE NOTE - this LPA can only be used when you are unable to make the specific decision in question. You cannot delegate your responsibility to decide on matters about you personally if you are able to do so for yourself.
‘Property and Financial Affairs’ LPA
A ‘Property and Financial Affairs’ LPA enables you to choose one or more people to be your Attorney(s) and make property and financial decisions on your behalf subject to any conditions or guidance that you want to include.
PLEASE NOTE - you can use this LPA whether or not you still have capacity to decide the decision in question yourself.
Both types of LPA require registration at the Office of the Public Guardian before they can be used and should be registered immediately upon completion.
When do I need to have one done?
Anyone over the age of 18 is able to sign an LPA provided that they have the mental capacity to do so. Often an LPA is signed where someone is beginning to lack mental capacity so as to ensure they have chosen who they trust to make decisions on their behalf.
For example, a person could have the mental capacity to make simple decisions (e.g. what to have for lunch today) but not more complex decisions (e.g. where to live or whether to have medical treatment). It also means that someone whose condition changes over time might have the mental capacity to make a decision one day but not the next.
Parents tell us they are concerned about their children who lack the mental capacity to make certain decisions and worry about what will happen when they become young adults. The MCA is the law which applies to decision making for people aged 16 and over who do not have the mental capacity to make decisions for themselves.
The Mental Capacity Act (2005) (MCA) says that decisions made about someone who lacks capacity must be made in their ‘best interests’. The views of the person’s friends and family must be taken into account when deciding what is in the person’s best interests.
Things like these should be considered…
- The person’s past and present wishes and feelings (including any written statement they made when they had capacity)
- The beliefs and values they would be likely to have if they had capacity
- Things they would consider if they were able to do so
- The views of others, including, if appropriate, anyone caring for the person or interested in their welfare and any Attorney or Deputy appointed by the Court of Protection
Enduring Power of Attorney
Whilst it is no longer possible to make an Enduring Power of Attorney ‘EPA’ any document signed before the beginning of October 2007 remains valid. PLEASE NOTE – an EPA relates to financial matters only and confers no legal powers whatsoever to a(n) Attorney(s) in relation to decisions about ‘Health and Welfare’.
An EPA does not need to be registered with the Office of the Public Guardian ‘OPG’ before it can be used. An EPA can be used by an Attorney(s) without needing to register it provided that you have the mental capacity to manage your financial affairs for yourself. An Attorney must register the EPA with the OPG when they know or believe that you may have lost the mental capacity to manage your financial affairs for yourself.
Without an LPA, your family may find it difficult to manage both your financial affairs as well as take decisions about you personally as they will not have the legal authority to do so and may not know your wishes. They may need to apply to the Court of Protection for an Order to be appointed as your ‘Deputy’ for ‘Property and Affairs’ and/or ‘Health and Welfare’. It can be costly and time-consuming to do this.
Putting both a ‘Property and Financial Affairs’ and ‘Health and Welfare’ LPA in place offers security for you and your loved ones and lets you decide what should happen if old age, illness or injury leave you unable to deal with your own affairs.
You can put an LPA in place yourself or you can visit a solicitor who can discuss your individual circumstances and concerns that you may have guide and advise you about your options. They will be able to complete all of the paperwork and register the documents with the Office of the Public Guardian. A solicitor will be able to review your situation more broadly and challenge and advise you on other issues that you may not have considered as well as looking at the ‘what if’ scenarios about how your family may act.
Sadly if you no longer have the mental capacity to understand what an LPA is and the powers that they confer upon your Attorney(s) it will not be possible to sign an LPA. In that situation an application for ‘Deputyship’ will need to be made to the Court of Protection. A solicitor will be able to advise you and your family about your options and prepare the application(s) for you.
There's a compulsory cost of £82 to register each LPA with the Office of the Public Guardian in England ‘OPG’. If you decide to use a solicitor, you'll also have to pay legal fees to your solicitor who will be able to advise you before you decide. It may be possible to apply for the OPG registration fee to be waved. You will need to complete form and demonstrate that you are within their eligibility criteria e.g. your income is below £12,000 per year.
Anything else I should know about LPAs?
An LPA can appear to be a straight forward document but please be advised that without specialist advice from a solicitor there is a risk that it could be invalid or difficult for your Attorney(s) to operate if does not function as you intended.
Where there are any questions concern mental capacity, an LPA should only be signed once a suitably qualified medical practitioner has done an assessment of capacity and confirmed in writing that you have the required capacity to sign the document.
PLEASE NOTE – ordinarily this would be a specialist medical practitioner rather than a GP.
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