We are living longer but sometimes we are not as healthy as we would like to be. The rise in cases of degenerative illnesses such as Dementia and Parkinson's Disease and the endless tightening of security in banking and other institutions mean that more of the elderly and vulnerable in our communities are having difficulty in taking care of their own finances and day-to-day living.
As always, fore-warned is fore-armed and we can prepare for a time when we may not be able to look after things entirely by ourselves. You may wish to appoint someone you trust to take care of your affairs if, in the future, you cannot do so yourself. That person would be your attorney.
Making an LPA does not mean that you have to hand the running of your affairs to your attorneys immediately. The document can be kept safely until it is needed. You are still in control of your own affairs and remain so until you cannot or no longer wish to do so. In the same way that you insure the car so that it can be replaced or repaired if something goes wrong, an LPA gives legal authority to someone you trust so they can deal with your affairs if you are not able to do so. However, a Lasting Power of Attorney cannot be used until it has been registered by the Office of the Public Guardian (OPG) a part of the Ministry of Justice. This takes at least six weeks and therefore we recommend that it is registered straight away so that it is available as soon as it is needed.
The Mental Capacity Act (2005) became effective on the 1st October 2007. It protects people who may not be able to make some decisions themselves and provides a legal basis for other people to make decisions on their behalf by two Lasting Powers of Attorney:
Allowing an attorney to make decisions on your treatment, care, medication, where you live, etc.
Take comfort from knowing that we have over 8 years' experience in the preparation of Powers of Attorney. Our charges are competitive and fixed with no hidden expenses. We genuinely believe that a Lasting Power of Attorney is the protection you need in your financial planning to give you peace of mind.
A Property and Affairs Lasting Power of Attorney (LPA) allows you to plan ahead by choosing one or more persons you trust, or a Trust Corporation, to make decisions and take appropriate actions on your behalf regarding your property and financial affairs. You decide what powers and the extent of the power to give your Attorney(s) when making decisions about any or all of your property and financial affairs.
This could include paying your bills, collecting your benefits or selling your house. Your Attorney or Attorney's can manage your finances and property whilst you still have capacity as well as when you lack capacity. For example, you may give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income if you find it difficult to get about, you are housebound or find talking on the telephone difficult, or you might be working or living abroad for long periods of time.
This type of LPA does not allow the person(s) you have chosen (your Attorney) to make decisions about your personal welfare. If you want someone to be able to make personal welfare decisions on your behalf you will need to make a Health and Welfare LPA.
A Personal Welfare Lasting Power of Attorney (LPA) allows you to plan ahead with regard to your personal healthcare and welfare by choosing one or more people to make decisions on your behalf.These personal welfare decisions can only be taken by your Attorney when you lack the ability to make decisions regarding your treatment or other personal matters for yourself; for example if you are unconscious or because of the onset of a condition such as dementia.
You can decide to give your Attorney the power to make decisions about any or all of your personal welfare matters, including healthcare matters. This could involve some significant decisions like giving or refusing consent to particular types of health care, medical treatment or whether you continue to live in your own home, perhaps with help and support from social services, or that residential care would be more appropriate for you.
You may wish your Attorney(s) to have the power to make decisions about 'life-sustaining treatment'. If you do then you have to expressly give your chosen Attorney(s) the power to make such decisions by completing sections 6 and 12 of the LPA form. You can also give your Attorney(s) the power to make decisions about day-to-day aspects of your personal welfare, such as your diet, your dress, or your daily routine. It is up to you which of these decisions you want to allow your Attorney to make.
This type of LPA does not allow the person(s) you have chosen (your Attorney) to make decisions about your property and financial affairs. If you want someone to be able to make decisions about your property and financial affairs on your behalf you will need to make a Property and Affairs LPA.
To make an LPA, you must use a special form. The LPA form is made up of three parts:
Part A - The Donor's Statement - This section is about you, the Donor, you will also list who you want to appoint to make decisions for you in the future, (your Attorney(s)) and how you want them to act on your behalf. When appointing your Attorney(s) you can place restrictions or conditions on the decisions your Attorney(s) can make and you can give them guidance as to how you expect them to act. The LPA cannot be used until it has been registered, you should name up to four people, family members or close friends (named persons) that you wish to be notified that the LPA is being registered with the OPG. You are required to sign this document in the presence of a witness.
Part B - The Certificate Provider's Statement - Your certificate provider will speak with you privately to satisfy himself or herself that you understand the powers you are giving your Attorney(s) and that there has been no fraud or undue pressure on you to make the LPA. If you have chosen not to notify any person (your named persons) of the fact that the LPA is being registered you will need to have two certificate providers, this is to safeguard you against a fraudulent act.
Details of who can and cannot be certificate providers are listed on the form.
Part C - The Attorney's Statement – The person/people you choose as Attorney/s need to provide their personal details and confirm that they understand their legal duties should they need to act. This part of the form will need to be signed by each of your Attorneys and their signatures will need to be witnessed.