What is the importance of having a Lasting Power of Attorney in place?

What is the importance of having a Lasting Power of Attorney in place?

A Lasting Power of Attorney is a legal document whereby the person making it (the 'donor') appoints someone (their 'attorney') to make decisions on their behalf if, or when, they are no longer able to make such decisions themselves. You are deemed no longer able to make decisions for yourself when you lose what is known as mental capacity.

Mental Capacity is defined under the Mental Capacity Act 2005 (MCA) which states: A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind of brain.

This wide definition means a person can lose mental capacity for a multitude of reasons, for example from a degenerative disease such as dementia, mental health conditions such as schizophrenia or bipolar disorder, severe learning disabilities, brain damage from a traumatic injury or general cognitive decline in old age. We can never be sure what the future holds, so it is important to create a Lasting Power of Attorney when you do have capacity, so that if you ever do need it, it is ready to be used, taking the stress off of yourself and those around you at a difficult time.

You can appoint anyone as your attorney, provided they are over the age of 18, are not bankrupt and have mental capacity themselves. Often people choose to appoint someone they know and trust, such as a family member or close friend. For others, who perhaps don't have someone they trust, it can make sense to appoint a professional, such as a solicitor. Whoever you choose to appoint is under statutory obligation to act in your best interests.

There are two types of LPA:-

  • 1.LPA for property and financial affairs – if you choose to create this type of LPA, your attorney will make decisions relating to matters such as your property, mortgage and bills. This type of LPA can be used while you still retain mental capacity, if this is your wish, or it can come into force when you lose capacity.
  • 2.LPA for health and welfare – if you choose to create this type of LPA, your attorney can make decisions relating to where you live, your medical treatment, the care you receive, who you have contact with and your social life. This type of LPA can only be used if you lose capacity.

Lasting Powers of Attorney have to be registered with the Office of Public Guardian before they are valid. It should be noted that at present the OPG is experiencing severe delays in checking and registering LPA's, which is a real problem if people urgently require the help of an Attorney. To overcome this issue, and to avoid incorrectly drafted applications which cause further delays, it is advisable to instruct a specialist lawyer to advise you on the specific situation and to prepare the document.

At Clapham and Collinge, our dedicated Private Client team are here to help both with making LPA's and supporting Attorneys who are acting for loved ones. Should you wish to find out more about Powers of Attorney, please do not hesitate to get in touch with us, by contacting our dedicated Client Relations team on 01603 693510, or emailing enquiries@clapham-collinge.co.uk.