An LPA is a legal form which allows a person (called the donor) to choose someone else to manage their affairs for them. The person chosen is known as an attorney. Under an LPA the person who is chosen to be an attorney can be a friend, relative or a professional person. The donor will decide who that person will be, and exactly how much power the attorney should have over his or her affairs. More than one person can be chosen to act as an attorney on the donor's behalf.
The donor must have capacity to execute the LPA at the time it was created. This means they must be able to understand what it is that they are signing, and what it means. An LPA can only be used once it has been registered with the Office of the Public Guardian.
This type of LPA may, for example, allow a donor to choose someone they trust to make decisions about how their money is spent and the way their property and affairs are managed. The attorney could be able to pay the donor's bills, sell their property or investments and make limited gifts on the donor's behalf.
With this type of LPA, the donor can specify that the attorney should only start managing their financial affairs after the donor lacks capacity, sometime in the future. If they do not specify this, the attorney can start using the LPA after it is registered, but while the donor still has capacity. All attorneys are under a duty to act in the donor's best interests.
This type of LPA allows the donor to choose a person to make decisions about the donor's personal healthcare and welfare and medical treatment, when they are unable to do so themselves. The donor can even choose to give the attorney the power to give or refuse consent to treatment on the donor's behalf, but the attorney cannot make decisions about life-sustaining treatment unless the donor specifically permits this in the LPA.
The attorney may also be given the power to make decisions as to the donor's diet, where they live and how they spend their time. These decisions can only be taken on behalf of the donor when he or she loses capacity, or the attorney reasonably believes that the donor has lost capacity, and after the LPA has been registered.
Whenever an attorney makes a decision under any of the two types of LPA, by law they must act in the best interests of the donor who has given them the power. Under the Personal Welfare type of LPA, the attorney must consider whether the donor has capacity to make the decision themselves. Only after having considered this, can the attorney make a decision on behalf of the donor.
The donor may appoint the same attorneys under both types of LPA, or different attorneys under each type of LPA. If different attorneys are appointed under each type of LPA, they may need to act together on some decisions. For example, the decision about where the donor lives should be taken by the attorneys under the personal welfare LPA. This may involve selling the donor's property, which is a decision for the attorneys under the property and affairs LPA.
It is the decision of the donor how much power is given to the attorney. They might decide that they want an attorney to make welfare decisions about their care but not make medical decisions on their behalf.
We can guide you through the process and prepare the necessary forms for you. You must be able to understand what it means and seeks to do for you. To check this and to prevent fraud a certificate has to be provided. We can arrange for this certification process to be completed for you.
Once the forms are complete, the certificate obtained and thre attorneys have signed the LPA must be registered with the Office of the Public Guardian before it can be used. We can deal with the registration formalities for you.
Once registered, a property and affairs LPA can be used straightaway, while the donor is still able to manage their own affairs, if that is required. However, a personal welfare LPA cannot be used until the donor has lost capacity. As the registration process will take between 5 and 6 weeks, and an attorney would not be able to act until after registration, clearly it is important for this type of LPA to be registered straight away.
On the application form you will be able to choose up to 5 people who you would like to be notified when an application to register the LPA is made. These will be people, who can be family members, other than the attorney, that you trust and know well, and who will be interested in your well-being. LPAs are an good way of ensuring your financial affairs are looked after at a time you are no longer able to deal or you no longer wish to deal with them yourself.
The personal welfare LPA ensures that you wishes are taken into account in your future care.
Contact Maria Turner for caring and supportive advice and information of our special fixed price service for LPAs.
© Copyright 2008 Burt Brill and Cardens Solicitors