Lasting Powers of Attorney are there as an instruction for everyone around you should you become incapacitated through ill health or injury. Many people believe that they are something for the elderly, but that’s simply not the case. And your LPA will be managed by the people who you appoint as your attorneys.
More on your attorneys in a moment. But first, a quick recap on Lasting Powers of Attorney.
These are legal structures that you put in place with the people who you wish to appoint to manage your affairs if you become incapacitated.
There are three LPAs:
- Health and Welfare
- Property and Finance
They are governed by the Office for the Public Guardian, and any litigation is managed through the Court of Protection.
Take a look at our blogs on LPAs here:
There are some very good reasons to invest in your Lasting Powers of Attorney, not least of which is how your family will be able to continue if finances are in your name, and medics or local authorities making decisions that you don’t agree with.
The case of Kate Garraway and her husband Derek’s battle with Covid-19 is the starkest example of the impact of not having your LPAs in place. Most of the family finances were in his name, so when he was put into an induced coma, no one could access the family finances. Add to that the decisions that were being made for his health were made by the medical team, and Kate Garraway was powerless at the beginning to access vital finances to pay the day-to-day bills and carry out his wishes for his healthcare.
Take a look at this video from Kate Garraway
Kate Garraway takes control of Derek’s business as she faces ‘financial woes’
Appointing your Attorneys to your Lasting Power of Attorney
Whoever you choose to appoint as your attorneys will have some pretty serious responsibilities if you lose capacity and they come into play to protect you and your interests.
Each LPA has different responsibilities, but in general, your attorneys will be responsible for:
- Managing your bank accounts and finances
- Managing any property that you might have
- Collecting benefits/pensions
- Continuing to run your business
- Decide the most appropriate type of care for you to receive
- Refuse or consent to medical treatment on your behalf
Your LPA really can be life and death, so putting your trust in the right people is crucial.
What are the Questions I should be asking myself?
There are some legal requirements that your attorneys will be required to meet, and you may wish to ask yourself what qualities you want your attorneys to have.
Your attorneys must be over 18 years old, in the case of a Property and Finance LPA, must not be subject to a bankruptcy order, and have mental capacity. Other than these criteria, the choice is yours. Typically people choose a family member, friend, or professional to act as attorneys. In the case of a professional, there may be a fee involved.
Q1. Who do I trust most to act on my behalf?
Q2. Are there any reasons why my choices would be barred or unsuitable?
Q3. Will the people I choose understand fully their responsibilities?
Q4. Will the people I choose respect my instructions and carry them out in my best interests?
Q5. Will the people I choose be able to work together in my best interests, or will there be conflict?
Trust and understanding are the key points when you’re making your choices. When you create your LPA there will be some very clear instructions that need to be followed. It simply isn’t the case that your attorneys can ignore them. There would be serious consequences if they did. But that may not help you at the time, so ask yourself if your attorneys really understand you and respect your decisions. the most impacting of these are your decisions for your health and life-giving care. It’s a tough call if you’re the attorney, but if your wish is that your life is not to be prolonged if there is no reasonable hope of recovery. Equally, of course, your medical team has no option but to respect your wishes and carry them out. So your attorney must advocate your wishes too.
Of course, your LPA will lay these instructions out clearly. There is another consideration to make. And that’s whether you instruct your attorneys to act jointly or severally, or jointly.
Attorneys acting jointly or severally in your LPA
This means that your attorneys can act together, or in the event that they can’t all be reached, one attorney has the authority to act on your behalf. This can be particularly useful in an emergency, but it doesn’t mean that one attorney can simply get on with it. In this case, it also means that should one of your attorneys become unable to act for you or decide they don’t want to, your replacement power of attorney can step in and fill those shoes.
Attorneys acting jointly in your LPA
In this case, all decisions must be made together, and any signatures or authorities made together by your attorneys. This could be a way for you to ensure absolutely that your instructions are carried out. But if one attorney is unable to continue or decides not to, all of your attorneys will be replaced by your replacement attorney.
Replacement Power of Attorney
Think of a replacement power of attorney as someone on your subs bench. They sign your LPA as a replacement, and in the event that your attorneys need to be replaced they step up. So it’s just as important to appoint someone using the same thought process as your attorneys because they could have the same role and responsibilities.
Lasting Powers of Attorney: FAQs
If I lose mental capacity and didn’t have an LPA what would happen?
To make decisions on your behalf your family would have to apply to the Court of Protection for a Deputyship order, which can be expensive and time-consuming. In the meantime, your finances could be frozen and medical care decisions made for you by your local authority or medical team.
Can I make my own decisions if I take out Lasting Powers of Attorney?
Yes. You can use your property and Finance LPA under your own instruction while you have mental capacity. But a Health and Welfare LPA can only be used if you lose mental capacity
Do I really need a Health and Welfare LPA as well as the Property and Finance LPA?
Yes. This LPA lays out your instruction for care, where you live, and life-sustaining treatment. It also means that you are in control of where you live, so your local authority cannot take you into care and grab your assets to pay for it.
How many attorneys can I appoint?
You can appoint as many as you like, but remember that the more you appoint, the more difficult it might be for them to work together effectively.
Do costs rise the more attorneys I have?
No. If you have one or 4 it costs the same.
Can someone who is bankrupt be an attorney?
No. They would need to wait until their bankruptcy order is discharged. Someone who is subject to a Debt Relief Order is also barred.
How do I write a Lasting Power of Attorney?
You can use an estate planning consultancy like Will Protect, or draft it yourself through the Office of the Public Guardian yourself. Whichever method you use, you will still have to pay the OPG registration fees.
For more information about Lasting Powers of Attorney, advice and to find out how we can help, get in touch with a member of our team here 0345 853 0942 or firstname.lastname@example.org