Lasting Powers of Attorney: Securing your interests and protecting future security

When it comes to anything legal, we’re rarely filled with excitement. Even when looking at buying a home, the contractual side of conveyancing is merely a formality or exercise that we need to go through but, when planning for the future, it has become more important than ever to ensure we’re prepared. While we often focus on financial security and asset protection, it is equally crucial to consider our personal welfare and decision-making abilities. This is where Lasting Powers of Attorney (LPAs) come into play, offering a legal framework to protect your interests and ensure future security should you become unable to make decisions or, where you might need a little additional support.

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney, also called an LPA is a legal document that grants someone you trust (and choose) the authority to make decisions on your behalf should you lose mental capacity in the future. They can be put in place whilst you have capacity if you’d like a little support from loved ones but they’re commonly used by loved ones to help ensure bills are paid, or to make important decisions regarding healthcare after you’ve lost capacity. Mental capacity refers to the ability to make informed decisions and understand their consequences. By creating an LPA, you can choose who will act as your “attorney” and empower them to make decisions related to your finances, property, health, and welfare. The important thing about capacity is that it’s required in order to be able to make an LPA or a Will for that matter.

LPA vs. EPA: Understanding the Difference

Before the introduction of LPAs in 2007, Enduring Powers of Attorney (EPAs) were commonly used. However, there are significant differences between the two. An EPA only covers decisions related to finances and property, while there are two different LPAs encompassing both financial and health-related matters. An EPA is typically more restrictive as it can only be registered by an attorney once a donor (the person whose EPA it is) has started to lose mental capacity. If you have an EPA and still have capacity, you’re able to create an LPA.

​​Capacity: A Crucial Element in Creating an LPA

To create an LPA, you must have the mental capacity to understand the nature and effects of the document. The Mental Capacity Act 2005 sets out a test for capacity, which involves assessing if you can understand, retain, weigh, and communicate the information relevant to the decision. It is important to note that capacity can fluctuate, and it is wise to create an LPA well in advance to avoid potential challenges later. We assess capacity for clients when taking their instructions for LPAs and can get additional support from Mental Capacity Assessors when needed.

Types of LPAs: Financial and Health and Welfare

LPAs come in two forms: a Property and Financial Affairs LPA and a Health and Welfare LPA. The former grants your attorney the authority to handle financial matters such as managing your bank accounts, paying bills, and selling property. The latter allows your attorney to make decisions regarding your health and welfare, including medical treatments, care arrangements, and even decisions about life-sustaining treatment. Having two types of LPAs ensures that you have comprehensive coverage across all aspects of your life. We can support with both.

Seeking Professional Help: The Importance of Our Expertise

While it is possible to create an LPA yourself, seeking professional help is highly recommended. We specialise in estate planning and Wills and can guide you through the process, ensuring that all legal requirements are met, and the document accurately reflects your wishes and most importantly will be registered by the Office of the Public Guardian without additional delay or without being rejected due to avoidable errors. Our approach minimises the risk of errors or challenges that could invalidate the LPA or incur additional cost. It’s not uncommon for LPAs to be rejected because of improperly completed forms and the OPG may require for registration fees to be paid again.

The Role of the Office of the Public Guardian

The Office of the Public Guardian (OPG) plays a vital role in the registration and oversight of LPAs. Once created, an LPA must be registered with the OPG before it can be used. The OPG safeguards against abuse or improper use of LPAs, providing an added layer of protection for vulnerable individuals. However, it is important to note that delays in the registration process may occur and it’s currently taking up to 16 weeks for documents to be registered, so it is wise to plan ahead. Additionally, there are registration costs associated with the process, which should be considered when creating an LPA. We can explain this fully.

Remissions of Fees: Financial Support for Those in Need

To make LPAs accessible to as many people as possible, the OPG offers remissions of fees for those who meet specific financial criteria. This means that individuals with lower income or limited resources may be entitled to reduced or waived registration fees, ensuring that the process remains inclusive and affordable for all. Again, we explain this fully and support those who may be entitled to those remissions in fees.

Should you have any questions about Lasting Powers of Attorney, speak to us and we’ll support you at Just Wills and Legal Services.