LASTING POWER OF ATTORNEY  LPA

Lasting Powers of Attorney forms "LPA's" must be completed when a person (the donor) has capacity to make decisions in preparation for when or if they lose mental capacity. Without Lasting Powers of Attorney documents in place the person or people you appoint to be your attorney's will not have the legal authority to manage your affairs or make decisions on your behalf. The LPA's must be registered with the Office of the Public Guardian.There are two types of Power of Attorney 1.Property and Financial Affairs and 2. Health and Welfare

1. LPA Property and Financial Affairs 

The first type is the Property and Affairs LPA which covers decisions about the donor’s financial affairs and their property. These are designed for you to appoint an attorney to make a range of decisions including the buying and selling of your house and other assets, dealing with your tax affairs, operating bank and building society accounts and claiming benefits on your behalf. These can be used at your direction while mentally capable and also by the Attorneys if you lack the capacity to make these decisions.

A Property and Financial LPA allows your attorney to manage the following

  • Buying or selling a property

  • Opening/closing or operating bank or building society accounts

  • Receiving income, inheritance or other entitlement on behalf of the donor

  • Dealing with the donor's Tax affairs

  • Dealing with the donor's mortgage, rent and household expenses

 

  • Insuring, maintaining and repairing the donor's property

  • Claiming and receiving benefits, pensions, allowances and rebates 

  • Medical care and residential care or nursing home fees.privatePaying for

 

2. LPA Health and Welfare

The second type of LPA is the Health and Welfare LPA. This covers decisions about the donor’s personal welfare and health, and can only come into effect after the donor has lost capacity. Attorneys appointed under this document can make decisions relating to your living accommodation and care, consenting to or refusing medical treatment on your behalf, and on day-to-day matters such as diet and dress. This can only be used, however, if you have lost the capacity to make decisions for yourself

A Health & Welfare LPA allows your attorney's make decisions on the following
  • Where to live and with whom

  • Medical Treatment and welfare care

  • Deciding about terminal illness and a care plan

  • Considering where the donor may like to die and funeral arrangements

  • Make complaints about any care or treatment

  • Assessment for and provision of community care services  

  • Who may visit and those excluded

  • Running the house, choosing decoration and furniture

Before the LPA can be used it must be registered with the Office of the Public Guardian (OPG). Their fee covers registration and should it occur, their costs of investigating allegations of mismanagement.

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What happens if I don't have LPA's in place and lose mental capacity?

If you lack capacity but have not previously appointed an LPA for Health and Welfare, and there are ongoing decisions that need to be made about your health or care, then someone close to you can apply to the Court of Protection to be appointed as your Deputy. This means that they will have the legal power to make decisions about certain aspects of your personal welfare. Deputies must be over 18 and are usually a family member or friend. The person who wishes to become your Deputy has to make an application to the Court of Protection. If their application is successful the Court will issue a court order that gives them authority to act on your behalf and explains which decisions they are legally allowed to make. It is worth noting, however, that welfare Deputies are appointed relatively rarely. This is because the Mental Capacity Act states that if a serious decision needs to be made about a person’s welfare, then a decision by the Court of Protection is preferable to appointing a Deputy. The Court will limit the Deputy’s decision-making power to specific issues, depending on your needs and the circumstances of the case. This is because the Deputy is appointed after you lose capacity and you therefore haven’t chosen this person yourself. A Deputy can only make a decision that they are authorised by the Court of Protection to make. So, for example, they cannot make a decision about your treatment if the Court has only given them the power to make a decision about your care arrangements. A Deputy must always make decisions in your best interests, and is bound by law to do so. They must also take all steps possible to help you make a decision for yourself if you can.

 

To apply to become a Court Appointed Deputy there is an initial fee of £400. The application is the first part of a longer process. Once the court order is issued there are continuing tasks and responsibilities that the Deputy has to complete. The Office of the Public Guardian will support and supervise decisions that the Deputy makes, and the Deputy will have to submit reports to them on any action or decision that is taken on your behalf. Further fees have to be paid to cover the cost of this supervision. They are as follows:

 

  • £100 for the Deputy Assessment fee. This is paid once to the Office of the Public Guardian to determine the level of supervision needed.

 

  • An annual supervision fee of either £35 or £320. The amount will depend on how closely the Deputy needs to be supervised. It is always better to create an LPA before you lose capacity. This is because the process of applying to be a Deputy can be lengthy and costly. The Deputy has to report on all the decisions they make, which they would not have to do as an Attorney. Furthermore, their decision-making power is limited to certain decisions, and deputies can never be given the power to refuse life-sustaining treatment on your behalf. For more information on Court Appointed Deputies contact Compassion in Dying or the Court of Protection. What if I do not have anyone close to me to be involved in decisions? The Mental Capacity Act created the Independent Mental Capacity Advocate (IMCA) Service to represent people who are unable to make important decisions about their health or welfare and have no family or friends who can be involved in the decision-making process. It is the responsibility of your local authority or NHS organisation to make sure that IMCAs are available to represent people who lack capacity. The person or team responsible for your care (such as your social worker or hospital doctor) has a legal duty to ‘instruct’ (refer you to) an IMCA if:

 

  • a decision needs to be made about serious medical treatment provided by the NHS;

 

 

  • or it is proposed that you have a long-term stay in a care home (for longer than eight weeks) or in a hospital (for longer than 28 days);

 

  • or it is proposed that you move to different accommodation on a long-term basis;

 

Please contact us on 01795 557597 for advice on putting place your Lasting Powers of Attorney 

click here to view the cost to put in place an LPA