There are two different types of LPA –
•Property and Financial Affairs, and
•Health and Welfare
Both are self explanatory, one deals with your property and financial affairs – this could include managing your bank accounts, paying bills (including care home fees), drawing your pension, and even selling your home; and the other, health and welfare deals with your medical decisions for example GP appointments, access to medical records, which nursing home you live in and medical treatment to sustain your life.
Can I have both?
Yes, you can have both or just one. You do not need to appoint the same attorneys in each LPA either. In order to make an LPA you must be over 18 and have mental capacity.
Are there any differences between the two documents?
The only real difference between the two different types of LPA is that although both need to be registered with the Office of the Public Guardian before they can be used, the Health and Welfare LPA can only be used if you lose mental capacity to make your own decisions. The Property and Financial Affairs LPA can be used as soon as it has been registered with the Office of the Public Guardian, i.e. it can be used by the attorney with the donor’s consent straight away following registration, even if mental capacity is never lost by the donor.
Who can I appoint?
Your appointed attorney should be someone you trust and who is reliable. It also helps if they are good with money and are organised. Some people prefer to appoint someone close geographically, however, this isn’t always necessary. If you don’t have any close family or friends that you would feel happy appointing, you can always appoint a professional, such as a solicitor or an accountant to act as your attorney. You can appoint more than one attorney to act together or you can appoint one main attorney with substitute attorneys appointed to act if your main attorney is unable to.
Why do I need an LPA?
If you lose mental capacity and you do not have an LPA in place your loved ones may struggle to assist you with both your financial affairs and your medical decisions. Banks and other financial providers will often freeze bank accounts when someone loses mental capacity and they will not allow access until someone is legally appointed to act for the incapacitated person. This applies even to joint accounts and therefore the joint account holder may find access to their money restricted as well. If you are in care your family may not be able to access your funds to pay your bills, your home may need to be sold to fund your care but again your family may be left without the ability to do this.
When should I make an LPA?
There is no set time to do this but I always advise clients to do it as early as possible. You must have mental capacity in order to make an LPA therefore there is no point waiting for something to happen to you, because by then it may be too late. Quite often clients will say, ‘oh I’m not that old, I’ll wait a bit yet’ or, ‘that’s the type of thing I will consider if I was to receive a diagnosis of dementia’, however, what if you were to have a stroke or fall into a coma through an illness or injury? This may happen suddenly and without warning and you will be left with no time to prepare. An LPA is a document you may never use, you may never lose mental and therefore may never need it, but isn’t it better to have one in place just in case?
What happens if I lose mental capacity without an LPA in place?
Someone (a family member or a professional) would have to apply to the Court of Protection on your behalf for a Deputyship Order to allow decisions to be made for you. Although this order is similar in nature to an LPA it is a much more difficult, time consuming and expensive procedure in order to obtain one. It can take many months and the individual appointed to manage your affairs is subject to a much higher level of scrutiny by the court than your attorney would be and therefore it can be a much more onerous task for someone.
Speak to Timms today about putting a Lasting Power of Attorney in place.
