Registering Lasting Powers of Attorney and Advance Decisions
Lasting Powers of Attorney (LPAs) enable you to appoint an attorney to assist you with your affairs. There are two types of Lasting Power of Attorney which serve different purposes – either to support with the management of your finances or with decisions around your health care. Sometimes you may require both, sometimes only one. You may also be considering an Advance Decision to help manage end-of-life decisions.
We explain how these work in more details below and some of the key considerations for each option.
What are the main types of LPA?
1. Lasting Powers of Attorney for Property and Financial Affairs
These LPAs enable you to specify who you would wish to manage your finances if you cannot manage them yourself. You can only make an LPA whilst you have capacity to do so, but the document will then remain valid in the event that you later become unable to manage your own affairs.
If you appoint more than one person, you can decide whether they should all act together (jointly), or whether they can act separately when required (jointly and severally).
Your attorneys must always act in your best interests, although you are able to give instructions and preferences within the document.
A Property and Financial Affairs LPA gives flexibility in that it can be used both when you have capacity and also if you lose capacity. You could, therefore, ask your attorneys to temporarily assist with your finances while you are abroad for a long period or if you have mobility problems and struggle to easily access the bank.
In the event that you lose capacity, your chosen attorneys will then be able to manage your property and affairs. They may make reasonable gifts on your behalf on certain occasions, for example for a relative’s birthday, a wedding and on other occasions where it is customary to do so.
If you do not have an LPA in place and you lose mental capacity, it will be necessary for someone to apply to the Court of Protection to become a deputy for you, which is both more costly and time-consuming than preparing an LPA, and you will have no control over the person ultimately appointed.
It is also worth considering putting in place a separate LPA for your business interests. If you are a business owner and you become incapacitated, an LPA which covers your business means that you will have thought about and appointed an appropriate person to take over on your behalf. This will help to ensure continuity and allow essential business operations to continue. Putting in place a business LPA would not affect your ability to continue to manage the business whilst you are still able to do so; it is a safeguard for the future.
2. Lasting Powers of Attorney for Health and Welfare
Under a Health and Welfare LPA, you confirm who you would wish to assist you with general care decisions, if you are unable to make these decisions yourself. The document covers day-to-day matters, and also allows you to confirm whether or not you would wish your attorneys to have authority to give or refuse consent to life-sustaining treatment on your behalf.
These LPAs can only be used once you have lost the ability to make the specific decision yourself.
A Health and Welfare LPA can operate alongside an Advance Decision.
Do I need an Advance Decision?
You may be willing to allow medical and care decisions to be made by healthcare professionals on your behalf, without a formal document in place for the day-to-day choices which need to be made.
If your concern is more focussed on end-of-life decisions and what may happen in these circumstances, you should consider putting in place an Advance Decision. This is a formal document which allows you to state now how you would wish to be treated if you later lose capacity to make this decision. You would be able to confirm in this document the circumstances in which you would wish to refuse treatment and it is particularly relevant in relation to end-of-life decisions and palliative care.
It is also possible to put in place a Health and Welfare LPA for the majority of care decisions, but to exclude from your attorneys' authority the ability to give or refuse consent to life-sustaining treatment on your behalf. The two documents would then work side-by-side, and you will have already made your own decisions about any end-of-life care.
An Advance Decision does not need to be registered with the Office of the Public Guardian, and it can therefore be put in place and become effective quickly.
Other types of Powers of Attorney
The other main types of Power of Attorney are General (or Ordinary) Powers of Attorney, Enduring Powers of Attorney and Trustee Powers of Attorney.
General Powers of Attorney can be used to appoint an attorney to deal with your property and financial affairs or for a specific commercial purpose. However, should you lose capacity to manage your own affairs, the General Power of Attorney will no longer be valid.
Enduring Powers of Attorney have now been replaced by Lasting Powers of Attorney for Property and Financial Affairs, although if you signed an Enduring Power of Attorney before 1 October 2007, the document should still be valid. Enduring Powers of Attorney can only be registered with the Office of the Public Guardian when your attorney believes that you are becoming or have become unable to manage your own affairs.
Although it is no longer possible to put in place new Enduring Powers of Attorney, it is worth reviewing your current document to ensure that it is still in accordance with your wishes. If not, you should consider replacing it with a Lasting Power of Attorney.
Finally, if you are a trustee, you can under the Trustee Act 1925 (and subject to any provisions in the trust document) delegate your trustee powers to an attorney for up to twelve months at a time. This will ensure that decisions about the trust can continue to be made and the trustee duties fulfilled.
How can we help?
We can advise you about the different options and explore which documents may provide the best solution for your particular concerns.
- Drafting documents. We can draft required documents for you and ensure that they are validly signed, in accordance with the Office of the Public Guardian's strict requirements in this regard. Where we are preparing LPAs for you, we are also able to act as the Certificate Provider, which is a person who can confirm that you understand the purpose and use of the document, and which is required for every new LPA arrangement.
- Registering your applications. Both Property and Financial, and Health and Welfare LPAs must be registered with the Office of the Public Guardian before they can be used. We are able to deal with the registration of LPAs with the Office of the Public Guardian on your behalf. There is a registration fee payable (currently £82 per LPA) and it takes several weeks for the registration to be completed. We would therefore recommend that we complete the registration for you straight away.
If you would like to find out more or have any questions please don't hesitate to get in touch with one of the team below.