Lasting Powers of Attorney: A guide

Lasting Powers of Attorney Taking Control of Your Future

Gary Coleman, Partner, KWW SolicitorsJanuary 2014 Telephone: 0208 979 1131Email: [email protected]

Contents

• Mental Health Act• Property and Financial LPA• Health and Welfare LPA• How To Set Up an LPA• Choosing an Attorney• Making Decisions on Your Behalf• Living Wills – Advance Decisions and

Statements

Longevity Comes With a Price

What is Mental Capacity?

• Having mental capacity means a person is able to make their own decisions

• If you’re unable to make your own decisions at some point in the future, someone else will need to do so

• These could be decisions about your property and financial affairs, such as paying your mortgage, investing your savings or buying items you need, or decisions about your personal welfare, such as what you should eat, or what type of medical treatment you should have.

What is Mental Capacity?

•Before someone can make a decision on your behalf, they must have reasonable belief that you cannot make that particular decision yourself. •The words ‘reasonable belief’ are important because capacity can change over time. The person making a decision for you must make sure they are acting in your best interests.

Lasting Powers of Attorney

• A way of giving someone you trust the legal authority to make decisions on your behalf if you lack mental capacity at some time in the future or no longer wish to make decisions for yourself

• Valid only in England and Wales• Replaced Enduring Powers of Attorney in 2007• Two types: Property & Financial; Personal

Welfare.

Lasting Powers of Attorney

• A way of giving someone you trust the legal authority to make decisions on your behalf if you lack mental capacity at some time in the future or no longer wish to make decisions for yourself

• Valid only in England and Wales• Replaced Enduring Powers of Attorney in 2007• Two types: Property & Financial; Personal

Welfare.

A Word of Caution

•Your Power of Attorney is possibly the most serious document you will ever write•Everyone has their own circumstances that need to be established and recorded correctly•You should be wary about attempting the process using an online service or doing it yourself as the document may fail and/or result in an undesired outcome.

Property & Financial Affairs LPA

An attorney (the person who makes decisions for you) can generally make decisions on things such as:

o Buying or selling propertyo Paying the mortgageoGiving people access to the financial

information of the donor (person who creates the LPA)

o Investing moneyo Paying billso Arranging repairs to the property.

Personal Welfare LPA

Covers decisions about healthcare and personal welfare. Attorneys can generally make decisions about:

oWhere the donor should liveoWhether the donor should consent to a

certain type of medical treatmentoWho they should have contact withoWhat they should eatoWhat social activities they

should take part in.

When is an LPA Valid?

• An LPA will be valid only if you have the mental capacity to set it up and have not been put under any pressure to create it. It must be your decision and you must be able to trust your attorney

• The LPA must be signed by a certificate provider who confirms you understand it and haven’t been put under any pressure to sign it. They must be someone you know well or a professional person

• The LPA must be registered with the Office of The Public Guardian before it can be used.

Setting up an LPA

• STEP 1: Choose your attorney - a person/s you trust, who will act in accordance with your instructions and who you know will have your best interests at heart if you are incapacitated

• STEP 2: Decide which LPA you want. Or you may wish to have both

• STEP 3: Get the LPA forms and information pack from the Office of Public Guardian, download them,or talk to KWW and we can do it all for you.

Setting up an LPA

• STEP 4: Appoint a certificate provider. This is someone who speaks with you privately to ensure you know what powers you are giving to your attorney, that there has been no fraud or pressure and who certifies that you fully understand what you are doing. Cannot be a family member!

• STEP 5: Register the forms at the Office of The Public Guardian in the UK and Wales. This can take up to 10 weeks.

Choosing an Attorney

• The role of attorney involves a great deal of power and responsibility. You should trust the person

• Your attorney could be a family member, a friend, your spouse, partner or civil partner. Or they could be a professional, such as a solicitor

• Attorneys can claim back expenses they incur as a result of their role. They can claim these from your money, keeping an account of any expenses and relevant receipts.

Making Decisions on Your Behalf

When someone is acting as your attorney under a LPA they have to follow certain principles set out in the Mental Capacity Act. These are aimed at making sure you are able to make your own decisions as much as possible, and that if this is not possible, your attorney makes the right decisions on your behalf.

Principles of Decision-Making

• Presumption of capacity: Unless it can established otherwise

• The right to be supported to make a decision: All practical steps must be taken to help a person make their own decision

• The right to make what appears to be unwise decisions

• Best interests (see over)• Least restrictive intervention: Having

considered all effective alternatives.

Best Interests: How Can I Be Sure?

When someone takes a decision in your best interests they must:

o Do everything possible to encourage you to participate in the decision-making

o Consider your past and present feelings, taking into account any statement of your wishes

o Consider your feelings, beliefs and values and consult with family, carers and friends, who might know about how these would affect your decisions

o Always remember your right to privacyo Know about any exceptions such as decision to

refuse medical treatment.

Typical Questions Answered

What if I’ve already created an EPA?If it was set up before 1 October 2007, naming someone as your attorney, it might still be valid. You might already be using it without having registered it, so someone can act on your behalf (unlike an LPA, which must be registered before use). This is fine, until you become unable to make your own financial and property-related decisions. Once this happens, the EPA must be registered before your attorney can take any further action on your behalf. At this point it’s the responsibility of your attorney to register the EPA with the OPG. An EPA only covers decisions about your property and financial affairs; an attorney doesn’t have power under an EPA to make decisions about your health and welfare. You might want to consider setting up a Personal Welfare LPA to work alongside the existing EPA.

Typical Questions Answered

What if I no longer have capacity to make an LPA or EPA?The Court of Protection may need to become involved. It can decide whether someone has the mental capacity to make a decision and make an order relating to the personal welfare or property and financial affairs of someone who lacks mental capacity. It can also appoint a deputy to make decisions on behalf of someone who lacks mental capacity. Someone who wants to make decisions on your behalf can apply to the court to be appointed as deputy. This is a similar role to that of attorney. The court will consider whether it is necessary for ongoing decisions to be made on your behalf, and whether that person is suitable to be appointed to that role. The court usually does everything by post rather than holding a hearing. If you have an existing EPA, the attorney may apply to act as a deputy in certain circumstances. You can’t choose your deputy and the process of appointing one can be lengthy and costly. It’s much better to have an LPA in place.

Living Wills

•A Living Will lets you indicate what type of treatment you want, or refuse some types of medical treatment in certain situations if you lack capacity to make or communicate your decisions at the time. •The term ‘living will’ doesn’t have a legal meaning but usually refers to either an Advance Decision or an Advance Statement.

Advance Decisions and Statements

• Advance Decision covers the types of treatment a person does not want. It must be made by someone who has the mental capacity to make it and communicate it. Although the decision doesn’t have to be in writing, it is more likely your wishes will be upheld if it is. It’s legally binding, meaning it must be respected by the person providing your treatment.

• Advance Statement covers any decision about how you would like to be treated, including non-medical matters such as your food preferences, religious or other beliefs, and even whether you would prefer a bath or shower. It isn’t legally binding but should be taken into account when deciding what’s best for you.

Thank you! For more details contact me on 0208 979 1131