You need to plan for the future well before you lose the capacity to deal with your own affairs. When planning for future care needs and possible mental or physical incapacity, you should consider how you would want to be cared for in the future and who you would want to make decisions for you.
What is Power of Attorney?
- Lasting Power of Attorney (LPA) - An LPA is a document that appoints one or more persons to act on your behalf during your lifetime. There are two types of LPA – one covering health and welfare decisions, and the other dealing with property and finance. You can appoint a friend, relative, or professional as your Attorney, and you should carefully choose people that you can trust to act in your best interests. In order to be legally recognised, the LPA must be registered with the Office of the Public Guardian (OPG).
- Enduring Power of Attorney (EPA) – EPAs were replaced by LPAs in October 2007, however, any EPAs created before then may remain valid. The person given the powers under the EPA must register the EPA with the OPG if you are losing your mental capability.
Who Should Set One Up?
Anyone can set up an LPA and we would advise that you do this, along with creating a will. Although most frequently people think of needing LPA to manage the affairs of an elderly relative with dementia, unfortunately, conditions that impact your ability to make decisions regarding your health, welfare and finances can affect anybody at any age. Some conditions which may result in a person needing an LPA in place:
- Brain injury
- Drug or alcohol impairment
The condition requiring you to have an LPA setup may be temporary - such as an injury which results in a stay in hospital, to a long-term condition, such as an ongoing mental health issue, or a stroke.
Having Power of Attorney in place should the worst occur means that your chosen attorney will not have to go to court in order to step in and manage your affairs, while also dealing with the wider impact of your situation.
How to Setup Lasting Power of Attorney
In order to set up Lasting Powers of Attorney you need to complete the appropriate forms and register that paperwork with the Office of Public Guardian. It can take up to 10 weeks for approval.
If you do not have an EPA or LPA in place at the time when mental capacity is lost then an application would have to be made to the court for a deputy to be appointed on your behalf. This is a much more expensive and time consuming procedure.
It is important not to put off long-term planning whether it is in connection with the management of your affairs, dealing with your property or making advance decisions about future medical treatment. You may think now that it will never happen to you, but if you do lose your capacity in the future, who would you really want to be making decisions for you?
A General Power of Attorney may be useful for specific purposes for example if you are going abroad or may be hospitalised for a while.
How is Mental Capacity Judged?
The Lasting Power of Attorney lays out who will make the decision as to when the LPA needs to be invoked, based on your mental capacity. This person, often a doctor, social worker or solicitor, will determine if you can make decisions on your own based on the following criteria:
- Can you understand the information you need in order to make the decision?
- Can you remember that information for long enough to make the decision?
- Can you assess that information well enough to make the decision?
- Can you communicate your decision?
If you cannot do the above then you will be deemed unable to make the decision and your LPA could be invoked.
How We Can Help
Lupton Fawcett has a team of experienced solicitors drafting and managing Lasting Powers of Attorney for individuals in a range of circumstances. Read more about our case studies….
We can provide practical advice and support concerning your future care needs and the possibility of mental and physical incapacity in later life. We can also offer advice about revocation of Powers of Attorney.
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With offices in Leeds, Sheffield and York, we can offer our services either on a face-to-face basis, by post or by email. Contact our team of experienced solicitors today, call us on 0333 323 5292, send us an email or fill in our online form.
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