Alicia Speed, wills, probate and trusts solicitor at Mincoffs Solicitors, answers common questions and misconceptions about lasting powers of attorney.
What is a lasting power of attorney (LPA)?
An LPA is a document which allows you to choose trusted individuals to make decisions for you. There are two different types of LPA, one for health and welfare decisions and one for property and financial decisions. Your attorneys would only step in to make health decisions for you if you could no longer make such decisions yourself due to a lack of mental capacity. However, you can choose when your attorneys can make decisions to help you to deal with your financial affairs.
How long does it take to make an LPA?
If a solicitor is advising you in relation to your LPAs then we usually estimate that it takes a couple of weeks for us to obtain your instructions and draft the relevant documentation. Once signed by you and your attorneys, it then needs to be registered with the Office of the Public Guardian (OPG), which currently takes around three to four months.
When should I make an LPA?
Ultimately, as soon as possible. LPAs can often be thought of as something to do much later in life, however no one really knows what is around the corner. LPAs do not need to be used as soon as they have been registered, however it is recommended to register them straight away so that the LPA is ready should it be needed in the future.
What happens if I do not make an LPA and lose capacity?
If you lose capacity and do not already have LPAs in place, then your loved ones, or the local authority, would need to make an application to the Court of Protection for a deputyship order, which can be onerous and lengthy. Presently, there are significant delays to this process, which could leave your loved ones in a difficult position as they would otherwise be unable to assist you with managing your affairs.
How many attorneys can you appoint?
You can appoint as many attorneys as you wish, however we would usually recommend appointing more than one, to ensure that your LPA can continue if your sole attorney can no longer act.
Can my spouse make decisions for me without an LPA?
No. Although your spouse may be able to assist with a joint account for example, they could not manage all of your affairs as if they were you. Your spouse does not have automatic access to all of your financial affairs, nor could they make decisions in respect of your health and welfare automatically. Further, if your bank become aware that you lack capacity, they can freeze your accounts, in which case without an attorney to make decisions on your behalf, your family would need to make an application for a deputyship order to gain access and help manage your affairs.
What decisions can my attorneys make?
Your attorneys can make most decisions as if they were you. Financial decisions may include managing bank accounts and investments, ensuring bills are paid on time, dealing with government organisations for benefits or pensions, and handling any future care requirements. In relation to your health, your attorneys would only step in if you can no longer make decisions due to a lack of capacity, and therefore they can decide how you are treated if you require life sustaining treatment, or even normal health decisions to include liaising with the local authority if you required additional care.
What if I change my mind about my attorneys?
You can revoke or partially revoke your LPA at any time so long as you have mental capacity to do so. We would recommend that you do not make any amendments to such documents without seeking legal advice as incorrectly amending or attempting to revoke your LPA can cause the whole LPA to become invalid.
Should I use a solicitor?
A solicitor will ensure that you are provided with all of the information required to allow you to consider how an LPA will best suit your requirements. The wills, probate and trusts team at Mincoffs Solicitors is highly experienced and can advise on any potential issues which may arise, so you can have peace of mind your wishes will be followed. We will handle the process from initial instructions to registration of the documents and will provide you with all relevant advice throughout the process. We will also ensure that you have the requisite capacity to make the LPA, that there are no concerns of duress and advise on how best to include your wishes by way of drafting preferences and instructions into your documents.
For friendly, sensitive advice on lasting powers of attorney, contact Mincoffs’ wills, probate and trusts on probate@mincoffs.co.uk or call the office on 0191 281 6151.
www.mincoffs.co.uk