Lasting Power of Attorney, otherwise called an LPA, is a document that gives an individual the authority to preside over a person’s affairs in the event that they are incapable of doing so by mental incapacity or disease.
Due to the extent of authority that an LPA has, donors are encouraged to select their LPA with extreme care. The donor (this is the person appointing the LPA) must ensure that they trust the donee (the appointed LPA) explicitly to act in their best interest at all times, being fair, considerate, reliable and trustworthy. A donee can be anyone such a friend, child, spouse or parent.
Types of LPAs
There are two types of Lasting Powers of Attorneys in the UK. The appointed donor acting under either category must serve in their capacity independently. An individual cannot, under UK law be managed by the same type of LPA for any reason. The categories of Lasting Powers of Attorneys are:
- Health and Welfare Lasting Power of Attorney (LPA UK).
- Property and Financial Affairs Lasting Power of Attorney
Health and Welfare Lasting Power of Attorney (LPA UK)
A health and welfare LPA has the authority to make decisions regarding the health care and well-being of the donor. This includes elderly care and living arrangements, medical care decisions, etc. They may also make decisions regarding the access of individuals to personal information about the donor. This type of LPA can only assume duties if the donor is unable to make a decision by way of mental incapacity. This must be confirmed by a medical practitioner.
Property and Financial Affairs Lasting Power of Attorney
A Property and Financial Affairs Lasting Power of Attorney LPA handles the financial affairs of the donor, including property, trusts, bills, bank and investments accounts, etc.
How Do You Appoint An LPA?
A person may make an application to appoint a Lasting Power of Attorney as long as they are within the reasonable mental capacity to do so at the time of the application. An appointed LPA must be registered with the Office of the Public Guardian before they can be appointed. The donee must also express agree to the terms and conditions of the LPA agreement prior to assuming the role by signing a certificate. The LPA agreement must also be witnessed and the donor agrees to adhere to the Code of Practice of the Mental Capacity Act 2005.
Appointing More Than One LPAs
There are two main strategies for appointing a donee. They can be appointed jointly or severally. A donor can have as many as four donees at any given time, however, if they are appointed to serve jointly, in order for decisions to be made, they must all unanimously agree. If they do not, or one or more of the appointed donees are unavailable, the decisions cannot be made until they are or have expressed their agreement, verbally or by signature agreement. Because of this, the option must be weighed considerable as it would mean that business on behalf of the donor can be indefinitely stalled until any disagreements are rectified. This is also an additional reason for the donor to select their donees carefully if they choose to exercise the right to appoint more than one.
A donor can also appoint more than one donee to serve in the capacity severally. This enables the remaining donees to continue making decisions on behalf of the donor if one or more of the appointed donees are unwilling or unable to act on behalf of the donor. However, problems can arise where one donee makes a decision that is not agreed upon by the other donees. In this case, arbitration by way of the court may be necessary if the other donees are strongly opposed to the action.
The donor may also include a stipulation that certain specific decision must be made jointly while allowing other to made severally. For example, a stipulation that the sale of capital assets be made jointly while other decisions may be made severally.
Who needs an LPA and When?
A donee should be appointed for anyone whose lifestyle frequents long absences abroad and senior citizen concerned with failing health. A donee should also be appointed in the event of impending loss of mental reasoning ability, such as in the case of degenerative diseases, mental disease or any other that will impact the individual’s ability to make their own decisions. If a person has already lost the mental capacity to legally make their own decisions, they will not be able to appoint an LPA. For this reason, the appointment of a donor must be done before any mental incapacitation. In order to appoint an LPA, the donee must be at least 21 years of age.
Making Decisions When you have an LPA
Even if an individual has appointed a donee they can continue to make their own decisions while they are well and able to. In order to eliminate the fear of decisions being taken to override the donor while they are capable of making their own decisions, the donee can include a stipulation that they will continue to make their own decisions until such time that one or more independent doctors have agreed that the donor is unfit to continue making their own decisions regarding their well being. Stipulations can also be included in the agreement that certain decisions cannot be made of the donee, barring a specific condition. These clauses protect the donor from abuse by the donee. At Roc and Co, we ensure that our clients can rest easy knowing that they are taken care of and protected from abuse by rendering assistance in appointing their lasting power of an attorney and drafting an iron clad agreement.
No Lasting Power of Attorneys Can Be Appointed After Mental Incapacitation
In the event that a person loses the mental capacity to make their own decisions, whether, regarding self-care or other legal and important matters, they cannot appoint or make an LPA application at that time. In short, a person with the mental incapacity to make a decision is not able to make legally binding decision such as appointing an LPA. For this reason, an individual is encouraged to make an LPA application as soon as possible. A deputy can be appointed by the application. A deputy can be a close friend, family member or a professional. To qualify for the application, a deputy must be at least 18 years of age and the decision will be made by the Court of Protection.
The Roc and Co. Advantage
Roc and Co can help you make your Lasting Power of Attorney application and draft your detailed and specific agreement to your expressed wishes. We also ensure that your agreement is drafted to provide you, the donee with maximum protection both before and during your most vulnerable time. Our team brings a combined number of years of experience in drafting LPA agreement and the UK application process to the table. We can answer all your questions and guide you through the process. Call us today!