There are two types of Lasting Power of Attorney (LPA) available under English (and Welsh) law. In this section, we explain what they mean and the difference they will make to the ongoing management of your estate and welfare.
Health and Welfare Lasting Power of Attorney
As the name suggests, a Health and Welfare LPA allows you to name Attorneys (such as a spouse or loved one) who can then make decisions about your healthcare, treatments and living arrangements if you lose the ability to do so yourself. For instance, these decisions could concern any of the following:
Your daily care routine, such as washing, dressing and eating
All forms of temporary and long-term medical care
Moving into a care home
Life-sustaining surgery or medical treatment
This document only takes effect if you lack the mental capacity to make decisions for yourself, either permanently or temporarily. In other words, you never have to worry about your Attorney using it against your wishes.
Why a Health and Welfare LPA matters
Without a Health and Welfare LPA in place, your spouse or loved ones have no say over the type of medical treatment and living arrangements you receive if you were to lose your mental capacity. For example, you could be given surgery that you would otherwise have refused or be placed in a nursing home without consent.
Property and Financial Affairs Lasting Power of Attorney
A Property and Financial Affairs LPA is equally self-explanatory, as it concerns how your property and financial assets are dealt with.
However, a key difference is that this document can either state that your Attorneys only take control if you lose mental capacity or be used more widely, such as giving them the legal right to contact your bank, utility provider and similar organisations when you give them the authority to do so.
This is greatly beneficial if you suffer from an illness, have mobility issues, or spend time outside the UK for any reason.
How an LPA benefits business owners
If you’re a sole trader or own a business, it’s crucial that you have someone in place who can make decisions on your behalf should the need arise. For example, if you were to have an accident, fall ill or otherwise lose the ability to make key decisions, your trusted Attorney can make them for you, as well as authorise transactions on joint business accounts. Without this in place many businesses fail after only 28 days.
What if I don’t have a Lasting Power of Attorney?
If you don’t have an LPA in place, no one has the legal authority to manage your affairs. This means in order for someone to take ownership over your bank accounts, investments, property and business ventures, they will be obliged to apply to the Court of Protection to become your Deputy. This takes far more time and comes with a significantly higher financial cost than when you appoint an Attorney under an LPA.
Deputyships
If an LPA is not in place, it will need to be established that you have indeed lost your mental capacity. This involves your trusted representative applying to the Court of Protection for a Deputyship. A Deputyship is similar to a Lasting Power of Attorney but is granted by the Courts, which is a lengthy process.
In the event that there are no relatives prepared to take on the role, the Courts will appoint a professional for you. This will be expensive and complicated compared to an LPA and often takes many months to achieve. That’s why organising an LPA sooner than later is a highly recommended course of action.
Applying for Deputyship
You can apply to become someone’s Deputy if they lack mental capacity, which is when it has been proven that they cannot make decisions for themselves at that time.
However, they may still be able to make decisions for themselves at certain times. For instance, the individual may temporarily lack mental capacity due to any of the following:
A serious brain injury or illness
Dementia
Severe learning disabilities
As a Deputy, you’ll be authorised by the Court of Protection to make decisions on their behalf at that time.
Types of Deputy
The types of Deputy and how they work is similar to being an Attorney:
Property and Financial Affairs Deputy
Health and Wellbeing Deputy
You can apply to be just one type of Deputy or both. If you’re appointed, you’ll get a court order saying what you can and cannot do. When you become a Deputy, you must send an annual report to the Office of the Public Guardian (OPG) each year, explaining the decisions you’ve made. You are also required to keep accurate records and accounts and take insurance in the form of a bond each year.
Appoint an LPA today
Though lack of an LPA doesn’t mean that your loved ones can’t apply for Deputyship, it does make the whole process much more complicated, time-consuming and expensive, plus it can result in limitations. By putting in place a Lasting Power of Attorney today, you can rest assured that a loved one, friend or trusted colleague can make decisions on your behalf should you ever lose your mental capacity.
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