Planning for the potential loss of mental capacity in the future often requires specialist advice. Our solicitors are on hand to provide expert and sensitive advice.
Have you thought about what would happen if you lost mental or physical capacity and could not make your own decisions? Who would you trust to act on your behalf?
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A Lasting Power of Attorney (LPA) is a document which gives someone you trust the legal authority to manage your finances and property and/or make health and welfare decisions for you if you develop a mental or physical condition that prevents you from doing this for yourself. An LPA protects your best interests and the best interests of your loved ones.
It is not unusual for business owners who want to ensure continuity for the business or who may be thinking about a sale to put in place a bespoke property and finance LPA. It is often the case that someone with implicit understanding of the business or with the relevant professional knowledge is appointed in such circumstances.
Generally speaking, as the authority given to your Attorneys is very wide-ranging, it is important to appoint someone you trust implicitly and who is well suited to the role that you are asking them to undertake.
Without a LPA, relatives would have to apply to the Court of Protection to be appointed to do the same role as an attorney, which can be a long-winded and costly process. If someone becomes incapacitated without having an LPA in place, the Court of Protection would have to appoint a Deputy to look after their financial affairs.
At Weightmans, we will guide you sensitively through the process of choosing your attorneys, deciding how you want them to make decisions, deciding whether to include preferences and/or instructions and appointing replacement attorneys. We will then complete the necessary forms and register the LPA(s) with the Office of the Public Guardian.
Schedule a callLiving Wills or Advanced Medical Directives (as they are sometimes known) are often considered at the same time as LPAs. Care should be taken where this is the case, to execute the documents in the correct order so that one does not revoke the other unintentionally.
A Living Will is legally binding and allows you to choose and explain which medical treatments you don't want in the future.
An advance decision to refuse treatment:
Before making an advance decision, it is always a good idea to discuss your options with a healthcare professional who knows your medical history. You can talk about the risks and benefits of certain treatments that you may be offered in the future, and what refusing them might mean. You may also want to discuss it with your family and friends so that they understand your choices.
You might also want to consider preparing an advance statement which sets out your wishes and preferences for any future care, in case there comes a time when you're unable to express those preferences yourself.
An advance statement isn't legally binding, but it's a record of your wishes and should be considered by all those involved your care.
You might like to include information on:
It is a good idea to give a copy of any advance statement to everyone who is involved in your care but especially your attorneys, your doctor and any other relevant medical professionals.
About Richard:
Richard advises clients on all aspects of estate planning including wills, trusts, family investment companies and probate matters. He has a particular specialism in tax mitigation and assisting business owners and those with more complicated family arrangements and asset structures with succession planning and wealth protection.
About Jonathan:
Jonathan heads the International Private Wealth offering at Weightmans. Jonathan is a trust, tax and estates lawyer and deals with all aspects of personal estates, wills and tax planning for UK-based and international clients. Jonathan specialises in offering international private wealth advice.
There is only a requirement to register an Enduring Power of Attorney if the person who made it (the donor) has lost or is starting to lose mentally capacity. The donor can consent to their attorney(s) using their Enduring Power of Attorney before it is registered provided the have capacity to do so.
A Lasting Power of Attorney is a legal document that enables a person you trust, such as a friend or family member to make important decisions about your finances or property or to make health and welfare decisions on your behalf, should you be unable to make these decisions due to the loss of mental capacity.
There are a number of reasons why you might need someone to make decisions for you or to act on your behalf:
Yes, there are two different types of Lasting Power of Attorney. One that deals with decisions about your property and finances, and one that deals with decisions about your health and welfare.
Your attorney(s) can deal with all aspects of your property and financial affairs using the Lasting Power of Attorney unless you expressly exclude them dealing with a particular asset.
For example, if you have a particularly expensive art collection you may wish to include an instruction or preference that the attorneys should seek professional valuation advice before they decide what to do with the collection.
Your attorney(s) can deal with all aspects of your property and financial assets unless you expressly exclude them dealing with a particular asset. This might include buying or selling property, paying bills on your behalf, administering your bank accounts and dealing with your pensions.
A Lasting Power of Attorney dealing with health and welfare can be used by your attorneys to make decisions such as where you live, your daily diet, your daily routine and even the clothes you wear. It also includes authority to make decisions about your medical treatment. You have the option of whether to give your attorney(s) the authority to make decisions on your behalf about the acceptance or refusal of life sustaining treatment.
A Health and Welfare LPA can only come into effect when you have lost mental capacity.
In respect of a Property and Finance LPA, you can choose when that takes effect; on registration or only when you have lost mental capacity.
A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian.
You can cancel your LPA after registration as long as you have still have capacity. The Office of the Public Guardian also has a supervisory function so if anyone has any concerns in relation to an attorney’s actions or believes that the donor is in some way vulnerable then these concerns can be reported to the OPG and it will decide whether to follow this up with the attorney(s) in question.
No — the authority of an attorney does not stretch that far, although there is a process that an attorney can follow to apply to the Court of Protection for a Statutory Will to be made in such circumstances.
If you wish to change your Lasting Power of Attorney in the future, you cannot amend the original document. You would need to revoke the original LPA and create a new one.
You can have as many attorneys as you like, but for administrative ease, we suggest that you have no more than four.
If you appoint more than one attorney you can choose whether they always have to act together or if each attorney can act individually.
You can also appoint a replacement attorney(s) to take over if your main attorneys can no longer act for you.
A Lasting Power of Attorney dealing with property and finances is used to pass the power of attorney over to a family member or someone you trust, so they can make decisions for you and on your behalf about financial issues.
They would be then allowed to make decisions regarding selling your house, dealing with any benefits, your bank accounts or investments. They would also be allowed to pay bills on your behalf.
A financial affairs Lasting Power of Attorney can be used whilst you still have mental capacity to deal with these affairs themselves, but only if you so choose. Otherwise, it only comes into effect when you lose mental capacity.
Certain clients can also require a Business LPA. This is a bespoke property and finance LPA which is often drafted for business owners who want to ensure continuity for the business or may be thinking about a sale of their business. It is often the case that someone with implicit understanding of the business or with the relevant professional knowledge is appointed in such circumstances.
This document gives your Attorney(s) the authority to make decisions about your care and personal welfare if you lack mental capacity.
A Lasting Power of Attorney dealing with health and welfare is used to make decisions on health and welfare aspects, such as where you live, whether in care or otherwise, what you can eat, your daily routine and even the clothes you wear. It includes your medical treatment.
You also have the option of whether to give your Attorney(s) the authority to make decisions on your behalf about the acceptance or refusal of life sustaining treatment.
Your Attorneys cannot use a Lasting Power of Attorney to force medical professionals to administer a particular type of treatment.
A health and welfare Lasting Power of Attorney can only come into effect when you lose mental capacity.
If you make an advance decision after setting up an LPA for health and care decisions, your attorney can’t agree to any treatment you’ve refused in the advance decision. If you make an advance decision before setting up an LPA for health and care decisions, the LPA will make your advance decision invalid, to the extent that you have given your attorney the authority to make treatment decisions that are the same as those covered by the advance decision.
Attorneys have an overriding duty to act in the best interests of the person who appointed them and an attorney cannot personally benefit from acting in that role. If you have lost capacity, there are limited circumstances where an attorney could make modest gifts on your behalf. Any larger gifts would need to be approved by the Court of Protection.
There is no prescribed form to be used for a person wishing to make an advance decision to refuse treatment. Nor are there any particular formalities about the format of an advance decision. It can be written or verbal — unless it deals with life-sustaining treatment, in which case it must be written and specific rules apply. You should always seek advice from a specialist in this area to make sure that your wishes will take effect in the event of a challenge.
The Office of the Public Guardian (OPG) is the agency responsible for recording and registering LPAs and for protecting the interests of those who lack capacity.
A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian. They charge a fee, currently up to £82, for each LPA application received depending on your circumstances.
The OPG operates a register of LPAs and if an original is lost then further copies can be issued.
The OPG also has a supervisory function for those with LPAs. if anyone has any concerns in relation to an attorney’s actions or believe that the donor is in some way vulnerable then these concerns can be reported to the OPG and the can decide whether to follow this up with the attorney(s) in question.
Having a Lasting Power of Attorney in place ensures that you and your family are protected from any distressing legal battles as the attorney you have chosen will be allowed, by law, to look after your best interests if you lose the ability to do this for yourself.
Without a Lasting Power of Attorney, relatives have to apply to the Court of Protection for deputyship, something which can be a time consuming and costly process. If someone becomes incapacitated without having a Lasting Power of Attorney in place, the Court of Protection can appoint a Deputy to look after their financial affairs.
Although it is possible to apply for an LPA yourself, it is easy to make a mistake and have your application rejected or create an LPA which does not do what you want it to. A large number of Lasting Power of Attorney applications are rejected by the Office of Public Guardianship every year.
A Lasting Power of Attorney can only be made whilst you have the required mental capacity. If you no longer have mental capacity, your friends or family members would have to apply to the Court of Protection to be appointed as your 'Deputy' to be authorised to make decisions relating to your property and financial affairs.
A Deputy would carry out the same role as an Attorney although there is more formality and cost involved. Also, it is the court which decides who is appointed as a Deputy — you would have no control over who this is.
The Court of Protection process is longer and more costly than the preparation and registration of a Lasting Power of Attorney. A Deputy also has additional duties to report to the Court of Protection on an annual basis with additional supervision fees payable to the Court and insurance costs to pay for the required annual insurance policy.
The Court of Protection will rarely agree to appoint a Deputy generally to make decisions about your health and welfare, preferring one off applications to make specific decisions. By its very nature, this type of application is often expensive.
There is no prescribed form to be used for a person wishing to make an advance decision to refuse treatment. Nor are there any particular formalities about the format of an advance decision. It can be written or verbal – unless it deals with life-sustaining treatment, in which case it must be written and specific rules apply. You should always seek advice from a specialist in this area.
An Advance Decision is a legally persuasive document. It allows you to say what treatments you wish to refuse if you are unable to make your own decisions. Used in conjunction with a Health and Welfare LPA, it permits your attorney(s) to authorise or refuse a wide range of treatment and/or care options.
An Advance Statement is not legally binding. It is your own statement of your wishes and preferences that you would want those who care for you to take into account towards the end of life. It can cover issues such as you prefer tea to coffee.
These set of documents ensure that you keep control of choices concerning your life should you lose the ability to make your own decisions by allowing you to refuse treatment in advance. They will ensure that those who care for you can take your preferences, wishes, and beliefs into account towards the end of your life. They allow you to go into much more detail than you can include in a Health and Welfare LPA.
We strongly recommend both documents are prepared in conjunction with each other to ensure your Attorney(s) have all the tools they need to carry out your wishes when you no longer have the capacity to communicate your wishes relating to these decisions.
