an accident, a stroke, or a
degenerative condition such as
Alzheimer’s and with growing
reports of 18-45 year olds suffering
from mental health problems it
can happen to people of any age.
If capacity is lost and there is no
LPA in place, any family or friends
will have to apply to the Court of
Protection for a Deputyship to
make decisions on the donor’s
behalf.
Lasting Power of
Attorney – The need
to know information
What is an LPA?
Whilst a Will is a document that
deals with your assets and allows
your executors to handle your
affairs after you’ve gone, a Lasting
Power of Attorney (LPA) provides
powers whilst you’re living.
An LPA is a document which gives
powers to your attorney(s) to make
decisions for you if you’re unable
to make them yourself. There are
two types of LPA. One that governs
your property and financial affairs
and another which deals with your
health and welfare.
However, it needs to be arranged
whilst still having capacity and is
best made sooner rather than
later.
Who should I choose as my
attorneys?
Your attorneys should be someone
you trust and professionals can
be appointed if needed. These
people have a duty to act in
your best interest. If you believe
someone is not acting in the best
interest of the donor then you
should contact the OPG and they
will investigate.
There is no obligation to create
both and according to the Office
of the Public Guardian (OPG) more
Property and Financial LPAs are
registered. However, each has its
separate and important functions. The documents provide no
powers after you’ve died and
cannot be used during your life
unless they’ve been registered.
Why make an LPA? There could be a number of
reasons in which you need an
LPA:
The possibility of losing mental
capacity can be a distressing
thought and is often seen as
something that does not need
to be considered until the future.
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When will I need an LPA?
• If you’re the sole earner in
your household and you lost
capacity without an LPA, your
The Society of Will Writers
How do you know if someone
has capacity?
The Mental Capacity Act is the
piece of legislation that governs
this. To have capacity a person
must be able to:
family may be unable to pay
bills without going through the
Court of Protection. This can
be an expensive and stressful
time for your family.
• If you suffer from dementia
and may lose capacity, you
may not be able to make
decisions for yourself. Under
these circumstances an LPA
would allow you to give power
to someone you trust to make
decisions for you.
• If you are a business owner
you may wish to appoint
attorneys under your Property
and Financial LPA who will
be able to make important
decision about the continuity
of your business in the event
of you losing capacity.
Don’t assume that your spouse or
partner will automatically be given
the right to make these decisions
for you.
Capacity and
responsibilities
an
attorney’s
Capacity could potentially be
lost at any time, such as through
• understand the information
that is relevant to the decision
they want to make
• retain the information long
enough to be able to make the
decision
• weigh up the information
available to make the decision
• communicate their decision by
any possible means, including
talking, using sign language,
or through simple muscle
movements such as blinking
an eye or squeezing a hand
The Mental Capacity Act
The Mental Capacity Act (MCA) is
based on five key principles:
1. Every adult has the right to
make decisions for themselves.
It must be assumed that they
are able to make their own
decisions, unless it has been
shown otherwise.
2. Every adult has the right to
be supported to make their
own decisions. All reasonable
help and support should be
given to assist a person to
make their own decisions and
communicate those decisions,
before it can be assumed that
they have lost capacity.
3. Every adult has the right to
make decisions that may
appear to be unwise or strange
to others.
4. If a person lacks capacity, any
decisions taken on their behalf
must be in their best interests.
5. If a person lacks capacity, any
decisions taken on their behalf
must be the option least
restrictive to their rights and
freedoms.
The
Court
(Deputyships)
of
Protection
Deputyship is granted by the Court
of Protection under circumstances
where no LPA is in place and where
an application has been made
following the loss of capacity. This
can be a lengthy process, costs
more than registering an LPA and
will incur ongoing costs which an
LPA would not. It can never be
certain that the Court of Protection
will approve an application and
they are particularly reluctant
to approve a deputyship for a
person’s health and welfare
Responsibilities of an attorney
A Property and Financial LPA
can be registered whilst you still
have capacity, but the Health and
Welfare can only be used once
you have lost capacity. You can
restrict the rights you give your
attorneys under a Property and
Financial LPA and they should be
someone you trust as they may
be responsible for investing your
money, paying your bills, arranging
the purchase or sale of property
etc. They would be expected to
keep records on what they spend
etc and should keep your money
separate from their own.
How much does it cost?
registration). This would be payable
to your Will Writer or solicitor. In
addition, there will be registration
costs payable to the OPG when
you submit the documents for
registration. Ordinarily this will be
£82. If you are on a low income
or on benefits, then you may be
eligible for remission of these
fees. There will be an additional
form necessary if you’re apply for
reduced fees.
How long does it take?
Once the forms have been
submitted then they will be
registered. This can take time, so
you should allow up to 16 weeks.
As with Writing your Will, there
is no obligation to use a solicitor
or Will Writer, however if there
are any issues with the forms,
then it could be rejected, and the
registration fee will have to be
paid again on resubmission. It is
therefore advisable to get expert
support and advice.
Remember
If you hold joint accounts with
someone and lose capacity the
bank can and will freeze the
account until they see an attorney
or deputy has been appointed.
Once you’ve lost capacity, it’s too
late. Get an LPA before it’s too late.
Footnote: Being that it is Christmas
you may wish to know a little more
about making gifts under an LPA.
The SWW’s technical adviser,
Siobhan Rattigan has written an
article on the subject.
If you have any questions then
please speak to an SWW member
or contact the Society of Will
Writers on 01522 68 78 88.
There may be costs to have the
documents drawn up (ready for
The Society of Will Writers
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