Why Everyone Should Have A Lasting Power Of Attorney

With many of us living well into our 80s and even 90s, the chances of developing a disease that affects your mental capacity, for example, Alzheimer’s or dementia has increased. According to Lancet Public Health, the number of adults (aged 40 years and older) living with dementia worldwide is expected to nearly triple, from an estimated 57 million in 2019 to 153 million in 2050, due primarily to population growth and population ageing.

It must also be remembered that it is not only a disease that can rob you of your ability to make decisions; an accident can temporarily or permanently render you mentally incapacitated.

It is for these reasons that everyone, no matter what their age, should have a Lasting Power of Attorney (LPA) in place to ensure someone they trust has the authority to manage their financial affairs and make decisions on their health and wellbeing if they cannot do so themselves.

What is a Lasting Power of Attorney?

An LPA is created by a donor who appoints an attorney (or attorneys) to manage their affairs in the event they lose mental capacity. There are two types of LPAs:

  1. Financial LPA – provides the attorney with authority to take care of the donor’s financial affairs, e.g. paying any mortgage or rent, managing investments, and buying and selling property.
  2. Health and welfare LPA – allows an attorney to make decisions concerning the donor’s health and welfare, e.g. giving medication, deciding whether the donor needs to move into a care facility, and what treatment can be given if the donor becomes ill.

An attorney has a statutory duty under the Mental Capacity Act 2005 to always act in the donor’s best interests. Furthermore, they can only take actions that are permitted by the donor through the LPA.

What is an LPA certificate?

Although most people take on the role of an attorney with the utmost good faith, abuse does unfortunately occur. To help protect the donor, the Mental Capacity Act 2005 states that an LPA must include an LPA Certificate provided by someone who has known the donor for two or more years and states:

  • The donor understands the purpose of the LPA and the powers it confers.
  • No fraud or undue duress was applied to the donor.
  • They know of no other reason that the LPA should not be approved.

What is the Office of the Public Guardian?

The Office of the Public Guardian (OPG) is responsible for registering LPAs. They also investigate matters concerning reports of abuse and/or the over-reaching of the power granted under an LPA.

How do I make an LPA?

The first step to creating an LPA is to talk to an experienced Wills, Estates, and Trusts Solicitor. They will carefully consider what you want to put in place with your LPA and ensure it is drafted correctly so it reflects your wishes.

An LPA must be made using the form prescribed by legislation. Form LP1F gives authority in relation to your (as the donor) property and financial affairs. Form LP1H does the same for health and welfare. As a donor, you can have your Solicitor draft the document to restrict your attorney’s authority in some areas. If you do one day lose mental capacity and at the time your attorney believes they need greater authority than you have given them within the LPA document, they will need to apply to the Court of Protection to extend their authority.

Can I end an LPA?

Of course – an LPA is made by choice so it can be terminated by you at any time provided you have mental capacity. To end an LPA, you must tell the OPG and the attorneys that it has been revoked.

An LPA can also end if:

  • The attorney decides they do not want to fulfil the role anymore.
  • In the case of financial LPAs, the attorney becomes bankrupt or subject to a debt relief order.
  • The attorney dies.
  • In the case of financial LPAs, the attorney is a trust corporation that is wound up or dissolved.
  • The marriage or civil partnership between the donor and the attorney is dissolved or annulled.
  • The attorney loses capacity to act.

If any of the above happens, the LPA will only end if the attorney in question was appointed jointly, rather than jointly and severally, and the LPA does not provide for a replacement attorney.

Getting legal help

Similar to a Will, a Lasting Power of Attorney is an essential part of life administration. Having one in place will save your loved ones the time, worry, and stress of having to apply to the Court of Protection for a Deputyship. And by getting an experienced Solicitor to advise you and draft the document, you can be confident that your best interests will be protected, and your wishes clearly communicated.

To find out how our friendly team can help you with a Lasting Power of Attorney, please phone us on 01159 556 555 or fill in our contact form and we will get back to you as quickly as possible.