Temporary, or permanent loss, of mental capacity can happen at any age. An LPA allows you to choose people you want to either help or make decisions for you.
It is common, as it is when it comes to making Wills, to think "I don't need to think about this at my age" or "I will worry about this when I get older" but permanent or temporary loss of mental capacity can happen, and sometimes very quickly, at any age due to accident or illness. In cases like this the right to manage your finances or make decisions regarding your healthcare are not automatically deferred to your loved ones, however if you choose to have a Lasting Power of Attorney (LPA) they can be.
What is a LPA?
An LPA is a legal document that lets you appoint people, known as Attorneys, to help you make decisions, or to make decisions for you.
As people may differ in the help they want there are two separate types of LPA. If you choose to have an LPA you can choose to have both or either of the LPAs explained below.
Health and Welfare LPA
A Health and Welfare LPA allows your attorneys to make decisions, for example, on important matters such as your medical care, life-sustaining treatment or care homes as well as on matters such as your daily routine. However they can only use this type of LPA after you lose capacity. Whilst you still have capacity it simply sits dormant in case it is ever needed.
Without a Health and Welfare LPA the Court will usually take the view that such decisions are usually best made by those involved with your day-today care, this may be medical professionals and not your loved ones.
Property and financial affairs LPA
A Financial and Property LPA allows your Attorneys to help with, or make, decisions for you when, for example, managing a bank or building society accounts, paying bills, collecting benefits, collecting pensions or selling your home. However, unlike a Health ad Welfare LPA you must decide whether the power of your attorneys begins as soon as your LPA has been registered OR only when you no longer have mental capacity. The first option is the most common as the second option may make your LPA less useful as your Attorneys might be asked to prove you do not have mental capacity each time they try to use it.
Who can be appointed as Attorney?
You need at least one Attorney. They do not need special legal knowledge or training but they should be people you trust and know well. The only requirements are that Attorneys must be at least 18 years old, must have mental capacity to make decisions and not be bankrupt or subject to a debt relief order.
How do they make decisions?
You can appoint your Attorneys to work in different ways. If you only have one then they will make decisions themselves, however if you have more than one you can appoint them either jointly and severally or jointly.
Jointly and severally means it is up to the Attorneys to choose whether to make decisions on their own or meet up and make decisions collectively. Most people choose this option because it’s the most practical as it allows urgent and simple decisions to be made quickly without all the Attorneys needing to be present. It is also possible to choose this option but require that certain, sometimes more important, decisions require a consensus, such as selling a house.
Jointly means Attorneys must agree unanimously on every decision, however big or small and if they can't agree then they can only make that decision by going to court.
What happens if you do not have an LPA and you lose capacity?
If you lose capacity and you do not have an LPA someone must apply to the Court of Protection to become your Deputy. As a Deputy, they will be authorised by the Court to make decisions on your behalf. As previously mentioned, however,the Court is usually unwilling to appoint a health and personal welfare Deputy for the reasons given earlier.
A Deputyship order, as an order of the court, comes with different costs and requirements than an LPA.
The differences.
LPA | Deputyship |
LPA application fee £82 | Application fee £371 |
No Supervision fee | Deputyship requires a supervision fee every year |
Attorneys are not required to provide a 'security bond'. | In some cases, if dealing with finances, a Deputy is required to provide a ‘security bond’ before being appointed. |
No requirement to submit yearly accounts. | Some cases require a Deputy to submit yearly accounts to the Office of the Public Guardian. |
No supervision required | Requires supervision visits by the OPG |
*Correct as of 24/02/2023 | |
How can we help?
Although LPAs can be done by yourself, thousands of people each year have their applications turned down due to errors. LPA forms can be tricky as the form must be signed and dated in a specific order. We help you through the process by making sure the document is executed properly, submitting it on your behalf and acting as a certificate provider.