Have you ever taken time to consider what might happen if you lost the mental ability to function for yourself? Nobody wants to think about the worst things that can happen in life, but it can take only a moment for something like a stroke, heart attack or other medical incident to leave you unable to make your own decisions, not just on your personal affairs but also in relation to your medical treatment and welfare. Whilst the onset of an illness such as dementia or Alzeimer’s disease can take place much more slowly, it can also leave you powerless to look after your best interests. Luckily, there is a way to ensure that your best interests are always protected – a lasting power of attorney.
A lasting power of attorney (LPA) gives another person or persons (known as your “attorney(s)”) the authority to act for you if you are unable to do so yourself. That authority continues even if you lose the mental capacity to make decisions for yourself. If you do not have an LPA in place and you lose mental capacity, it will be necessary for someone to make an expensive and time consuming application to the court in order to act on your behalf. This can take several months and it is not uncommon for it to take 6-9 months.
There are two types of LPA, namely:
You can have either or both types of LPA.
This type of LPA allows your attorney to deal with your financial affairs, for example to pay your bills, sell your property or investments and operate your bank accounts. Unless you specify otherwise in your LPA, your attorney can use your LPA while you still have capacity to make financial decisions yourself. If you allow your attorney to make decisions before you have lost mental capacity, it does not mean that they automatically take all financial decisions for you, it just means that they can take these decisions if you allow them to at the time. This can be helpful if you are unwell or on holiday for an extended period of time.
This type of LPA allows your attorney to make decisions about matters such as your medical treatment, your diet, where you live and how you spend your time. Unlike the LPA for property and financial affairs, your attorney can only use it when you have lost the mental capacity to make decisions yourself.
Your attorney cannot make decisions about life-sustaining treatment unless you specifically allow this in the LPA. Life-sustaining treatment includes ventilation to help with breathing, feeding through a tube and resuscitation.
You must only appoint people that you can trust to act as your attorney(s). You should consider the following categories of people when deciding who to appoint:
You should also consider practical issues such as whether it would be better to have an attorney who is geographically close to you (this might be less relevant, for example, for an LPA for financial decisions if you deal with all of your finances online). You should also consider the time, skills and expertise that each attorney has in relation to what they may need to do. If you choose to appoint professional attorneys you will need to pay them for acting as attorney but you can also pay other attorneys if you wish.
It is possible to appoint more than one person to act as your attorney. You can also appoint replacement attorneys. This is useful as an insurance policy in case one of your attorneys cannot act.
You can appoint more than one attorney in the following ways:
You or your attorneys can register your LPA with the ‘Office of the Public Guardian’ (OPG) at any time. However, your attorney(s) can only use your LPA to make decisions on your behalf after it has been registered.
For the reasons stated above we would always recommend that any LPAs are registered immediately.
To find out more about lasting powers of attorney or to discuss any other private legal issues, don’t hesitate to get in touch with our private client expert Steven Smith:
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