There are two types of LPAs: (1) Health and Welfare and (2) Property and Financial Affairs
• The health and welfare LPA allows the attorney to make decisions about the daily routine, medical care and treatment of the donor, eg they might make decisions about moving the Donor into a care home. This type of LPA only comes into effect when the Donor has lost mental capacity as confirmed by a doctor.
• The Property and Financial LPA allows the attorney to have power over and make decisions about the donor’s finances. This may include selling their home, accessing their bank accounts, collecting benefits and paying bills. It may be designed by the Donor to come into effect as soon as it is registered, when a loss of mental capacity is confirmed or at another point of their choosing.
• If someone loses capacity without an LPA, the Court may appoint a Deputy. Typically a friend or relative or a professional such as a solicitor. Appointing a Deputy can be a lengthy, time-consuming and complex process, with the cost typically taken from the estate of the person who has lost mental capacity.
Good reasons to have an attorney appointed:
• You get to choose the person or people that will look after your affairs for you.
• You can discuss how you would want your affairs to be managed with your attorney.
• It makes life easier for family if you lose capacity.
• It is more likely you will be cared for in the way you would have wanted.
• You can set guidelines and restrictions in your power of attorney as to what your attorneys can and can’t do.
Bad outcomes at not having an attorney appointed:
• If you lose mental capacity and do not have power of attorney in place then a third party will need to apply to the Court of Protection for a Deputyship order.
• Those acting as a non-professional Deputy state that they have had great difficulties in trying to cope with the administrative burden of getting a deputyship at what was often an emotionally difficult time in their lives.
• Most had not discussed any of the practical details of the Donor’s financial situation or how they would like to be cared for with them beforehand, which meant they needed to unravel the client’s financial affairs and make the decisions themselves. This was often very complicated and stressful; in some cases there was the added pressure of needing to financially support the Donor until the Deputyship was in place and the on-going burden of needing to pay fees and provide financial accounts to the Office of the Public Guardian.
Attorney – a person appointed by you to manage your affairs and make “best interests” decisions on your behalf
Donor – you, or the person making the power
Capacity – the ability to make your own decisions
Power of Attorney – generally refers to the actual document
Deputyship – where you have no power of attorney and you lose capacity. The Court may appoint someone on your behalf. This can be a family member or could be a solicitor. You will not have a choice. The person appointed is called your Deputy.