There may come a point in your life, when you are unable to take the decisions that will affect your own life and well-being, due to mental incapacity. This most commonly occurs when a person is suffering from a degenerative disease, often linked to old age, or has been involved in an accident that renders them unconscious or mentally incapacitated in some way.
This is understandably a scary prospect. You are however allowed to prepare for this event in advance and choose one or more people you trust to make those decisions on your behalf if the time comes when you are not able to.
What is a lasting power of attorney?
LPAs were introduced into English law under the Mental Capacity Act 2005. Since its effect on 1 October 2007, it has served the purpose of meeting the needs of people who can see a time when they will not be able to have the capacity to make decisions regarding their personal, financial and business affairs.
You can choose relatives or just someone you trust.
Through an LPA, you have control over what happens to you if you get to a period when you do not have the mental capacity to make your own decisions.
What are the types of lasting power of attorney?
a. Health and Welfare Lasting Power of Attorney
A Lasting Power of Attorney for Health and Welfare is a legal document that lets you pick attorney(s) who would help you make decisions or make decisions related to your health and personal welfare on your behalf.
When you choose your health and welfare attorney(s), it becomes their duty to make decisions about things such as your daily routine, medical care, moving into a care home or life sustaining treatment. They would ensure that decisions are made in your best interest. A health and welfare LPA can only be used when you are unable to make your own decisions.
b. Property and Financial Affairs Lasting Power of Attorney
This type of lasting power of attorney gives you the right to choose attorney(s) whose duties are centred around helping you make decisions or making decisions on your behalf on matters relating to your finances and property.
These can include and are not limited to: selling and buying properties, looking after accounts, savings, investments and other financial affairs.
Your attorney(s) are also entitled to the right to create a will for you if you do not have one or if you have an invalid will.
They would, however, have to apply for a statutory will and are not permitted to make any changes to the will if you don’t approve.
Your Property and Financial Affairs Lasting Power of Attorney can come into effect as soon as it is registered.
Registering a Lasting Power of Attorney: What you should know
When you decide to have an LPA, there are certain things you need to put into consideration and act on. They include :
Choosing your attorney(s)
You need to understand that when you choose an attorney, it becomes their duty to make decisions that could affect you and your life either positively or negatively. You therefore have to ensure that you choose someone you trust and someone who is right for you.
Your attorney(s) can be your trusted friend, a relative, a solicitor, your husband/wife or your partner. They must have the mental capacity to make decisions and must be 18 years old or over.
You can put certain factors into consideration before choosing your attorney(s), some of them include:
- If you trust them to make decisions that are in your best interest?
- How much and well you know them?
- How comfortable they will be making decisions for you?
- How well they make decisions regarding their own affairs? You wouldn’t want to pick someone who makes bad financial decisions to handle your finances.
Your attorney(s) must not be bankrupt and must understand that your finances are different from theirs, except where you have a joint account with them.
You can decide to choose more than one attorney and depending on what you decide, you can have them make decisions jointly or separately.
Making an LPA
You can choose to make a Lasting Power of Attorney online or using paper forms (you would have to print out the forms and fill them manually).
Whichever method you choose, you must get the attorney(s) you have chosen to sign the LPA.
You also need to have witnesses who will sign the forms.
You can get the help of someone like a solicitor to fill out the forms.
Ensure that you get guidance and help when filling out the forms, especially if you don’t understand them.
Just like your attorney(s), your witnesses must be 18 years or over.
Registering your LPA
Without registering your LPA, your attorneys’ decisions will be null and void.
Usually, if you make your LPA online, it will have automatically registered.
You can only register your lasting power of attorney yourself, if, at the period of registration, you are able to make decisions yourself. You also have to be 18 years or above to register a Lasting Power of Attorney.
If you are unable to make decisions yourself, you can have your attorney register the LPA for you and you are allowed to object to the registration, if you are not satisfied with it. It takes about 8-10 weeks to process the registration of your LPA and you would have to send out forms to ‘people to notify’ or ‘people to be told’. These people would be listed in your LPA and they will have 3 weeks to raise any concern with the OPG.
If you made your LPA online, forms will be created for you to include your ‘people to notify’ or LP3 as it is legally termed.
Do I have to pay any fee to have my LPA registered?
Yes, you do.
It costs £82 to register your LPA with the Office of the Public Guardian. If you decide to register both Health and Welfare, and Property and Financial Affairs LPAs, this will mean it will cost you £164 to register them.
That is except if you are given a reduction or an exemption for valid reasons.
You can make payment using credit/debit cards or just write a cheque in the name of OPG with your name written on the back of the cheque.
What else you should know about LPAs
If you have registered your LPA with the Office of the Public Guardian and you still have the mental capacity to make decisions for yourself, you can ask the OPG to make changes to it. You are allowed to remove one or more of your attorneys.
You should note that you need to make sure you inform the OPG if one of your attorneys changes details such as their name or address. You also have to inform the OPG if one of your attorneys dies.
If you can still make decisions for yourself, you are allowed to confirm that your LPA is genuine by certifying it. You or your attorney(s) can use the certified copy if the original forms are not available. Your LPA can be certified by a solicitor or any person who is authorised to carry out notarial activities.
You should note that you can end your LPA only if you are able to make your own decisions. Your LPA automatically ends if your attorney(s) lose the ability or mental capacity to make decisions, or if your only attorney dies and if you die.
What happens if you don’t make an LPA?
If, at any time, you become unable to make decisions yourself and you didn’t make an LPA, it would mean that no one, not even your family members would be able to legally make decisions for you. At this point, things can become very complicated.
If you are in a such a situation, someone may need to apply to the Court of Protection on your behalf to become your deputy which gives that person similar powers to that of an attorney.
The process of becoming a deputy is however more time-consuming and expensive than processing an LPA. Also, a deputy might have to pay a certain fee and make reports regarding you.
It is therefore wiser and simpler to process an LPA when you still have the mental capacity to do so.
Common mistakes that can render your LPA invalid
- Using the wrong form. As you know, there are two types of LPAs and using the forms of one type for the other will render the LPA invalid. If you are making a Health and Welfare Lasting Power of Attorney, you have to ensure that you use the forms that belong to Health and Welfare LPA.
- If a solicitor is filling out the forms, they might forget the donor, attorney(s) or witnesses’ names and this could lead to invalidity of the LPA. There might also be instances where mistakes occur in spaces provided for signatures.
- Being vague when highlighting any life sustaining treatment you might want.
- If there are any forms of contradictions.
- Missing pages. You need to ensure that your forms are complete to the last letter, to ensure your LPA’s validity.
- Signing the forms in the wrong order.
- With an LPA, there needs to be a certificate provider and they need to register the document before it can be used. This means that all required signatures (yours, attorneys, witnesses, certificate provider and that of the OPG), have to be present and correctly invited for the document to be valid.
- Using pencil or correction pen on the written forms. This is because an LPA is a legal document and any alterations made to them must be legally approved. If you use pencil to fill out the forms, it is possible that alterations could have been made to them at any point. Also, using correction ink wouldn’t validate the approval of whatever you have chosen to alter.
If you are confused as to how to go about making and registering an LPA, ensure that you contact a professional who will help you understand the process better. Have it at the back of your mind that the LPA will be the one to determine the decisions to be taken on your behalf.