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POWERS OF ATTORNEY

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that you, (the Donor), make which gives someone else that you trust, (the Attorney), the power to make decisions on your behalf.  These decisions will concern such things as your property and affairs, or health and welfare.  The Lasting Power of Attorney is generally used at a time in the future when you no longer wish to make those decisions or you may lack the mental capacity to make those decisions yourself.  Once written, a Lasting Power of Attorney can only be used after it is registered with the Office of the Public Guardian.

There are two different types of Lasting Power of Attorney (LPA):

  • a Health and Welfare LPA, which typically covers where you live, who visits you, and the type of care you receive.

  • a Property and Financial Affairs LPA, which typically covers bank accounts and other finances, including selling property and investments.

Anyone aged 18 or over, with the capacity to do so, can make an LPA appointing one or more Attorneys to make decisions on their behalf.  You cannot make an LPA jointly with another person; each person must make his or her own LPA.

Registering a Lasting Power of Attorney

Your attorney can use an LPA only after it has been registered and stamped on every page by the Office of the Public Guardian who charge a fee for the registration process.  There is also a waiting time to register, which includes a four-week period when people can object – the overall waiting period at the time of writing was 20 weeks.  A donor can register their own Lasting Power of Attorney while they are able to make their own decisions. Alternatively, it can be registered by the attorney(s).

There is no requirement to register a Lasting Power of Attorney immediately, but there are advantages in doing so. Immediate registration means any errors in the Lasting Power of Attorney can be identified at a time when they can be corrected.  It also allows the Attorney to act more quickly when capacity is lost by the Donor, as the wait period is already completed.

 

Enduring Powers of Attorney

 

An Enduring Power of Attorney (EPA) could only be set up before 1 October 2007 and can still be used if signed before this date.  No new EPAs can be written after this date.  If you have an Enduring Power of Attorney in place, a Lasting Power of Attorney can also be made if appropriate – please contact us if you would like further information.

What are the Consequences of not having a Lasting Power of Attorney for Health and Welfare in Place?

What Decisions can be made by your Attorneys on your behalf with a Health and Welfare LPA?

Having this LPA in place will give your attorneys the authority to make the following decisions on your behalf:

  • Day-to-day decisions such as exercise, dietary requirements and care.

  • Arrange medical or dental care.

  • Make decisions on life-sustaining treatment.

  • Where the donor lives, i.e. relocation into a care home or sheltered accommodation.

The LPA will allow you to set out any preferences you would like your attorneys to be aware of. Preferences are non-binding wishes that you would like the attorneys to keep in mind when making decisions on your behalf.  We have set out some examples below:

  • “I would like my pets to live with me for as long as possible. If I go into a care home, I’d like to take them with me.”

  • “I prefer to live within 5 miles of my sister, NAME.”

  • “I would like to have regular haircuts and manicures.”

You can also set out instructions in the LPA which are legally binding and that your attorneys must follow. We have set out some examples below:

  • “My attorneys must ensure I am only given vegetarian food.”

  • “My attorneys must not decide I am to move into residential care unless, in my doctor’s opinion, I can no longer live independently.”

When does it come into Effect?

A Health and Welfare LPA will only come into effect once the donor loses mental capacity and it has been registered.

What is the Cost to Register the LPA and What is the Turnaround Time?

A Health and Welfare LPA can only be used once it has been registered with the Office of the Public Guardian (OPG).

There will be a registration fee payable to the OPG when the LPA is submitted to them.  The current cost is £82 per LPA.  If you are on a low income or receive benefits, you may be eligible for fee remission.  [An additional form (Form LPA120) will need to be completed if you are applying for reduced fees.]  Registering your LPA with the OPG can take up to 20 weeks or possibly longer, depending on the volume of applications they receive, so it is important you register your LPA as soon as possible.

What Happens if you do not have a Health and Welfare LPA?

It is a common misconception that a Health and Welfare LPA is only needed for those that are of an older age. The reality is that capacity could be lost at any time due to a serious accident, stroke or even a degenerative condition such as Multiple Sclerosis or Motor Neurone Disease.

If you should lose capacity and there is no Health and Welfare LPA in place, your family and friends will not have automatic authority to make decisions on your behalf regarding your health and welfare.  Instead, others could make decisions for you and the decisions made may not be what you would have wanted, e.g. Social Services will decide where you live and what care you receive, or you may be resuscitated against your wishes.  This can cause disagreements between family members and professionals about what is best for you.  Having an LPA in place prevents those disagreements whilst ensuring that your loved ones, or others you have chosen in advance to make such decisions, are legally able to do so.

Is there a way for someone to make decisions on my behalf after I have lost capacity if I do not have a Health and Welfare LPA?

Yes, if capacity is lost and there is no LPA in place, a friend or family member can apply to the Court of Protection to become a Personal Welfare Deputy for you and make certain decisions on your behalf.  However, it is likely that such an application would not be sought until some sort of sudden “crisis” had already occurred.  They take many months to expedite and, even then, they are not particularly effective as the Deputyship, if granted, will only apply to a specific element of personal welfare at issue, rather than a blanket approach as would be the case with an LPA.  Mental Capacity assessments, together with detailed witness statements, must be submitted and objections for specific reasons must be presented to dispute an application.  This is a very long and expensive process and routinely takes 6-12 months.  Therefore, by the time the Deputyship is granted (which is by no means a foregone conclusion anyway) the “crisis” will be long past and, in the interim, others will have been making decisions on your behalf and your family will have been powerless to influence them.  It is significantly cheaper and much more effective to have an LPA in place.

These days, there is also a trend for “discharge to assess” where hospitals may discharge a patient into a care home (and that could be any care home where there is an available room) prior to their needs being formally assessed and decisions made about whether or not they can safely return to live at home.

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