Unless you formally appoint someone to be able to make decisions on your behalf, then no one has any automatic right to act on your behalf in the event that you lose mental capacity.
For example, this means that spouses cannot make decisions on each other’s behalf, and neither can parents and adult children. In the event that you should lose mental capacity for any reason, such as dementia, alzheimers or an accident or any injury, then a costly and time-consuming application to the Court of Protection to be appointed as your Deputy could become necessary if you do not have valid LPAs in place.
LPAs are legal documents by which you can appoint one or more nominated people, called your attorneys, to help you make decisions or make decisions on your behalf either at your invitation or should you lose mental capacity.
There are two kinds of LPA. One deals with matters of your Property and Financial matters. The second option deals with Health and Welfare matters. It is important to note that they are completely separate documents and you can choose to set up either or both. Once the LPAs have been correctly signed, including by a certificate provider, they must then be registered with the Office of the Public Guardian before they are valid. Registration takes around 10 weeks.
What decisions can an attorney make?
An LPA for Property and Financial affairs can be used by your attorney as soon as it is registered, but only at your invitation or should you lose capacity. This LPA deals with practical issues such as assessing your bank and savings accounts, dealing with your investments, pensions etc. and also bigger decisions such as selling or buying property for you. An attorney has a restricted ability to make gifts on your behalf.
In contrast, an LPA for Health and Welfare does not allow your attorney to act on your behalf unless you are unable to make the decision in question. You remain completely in control of health and welfare decisions unless you have lost capacity. These decisions would include where you would live, what you might wear or what your diet may be, but it also potentially extends as far as being able to accept or refuse life sustaining medical treatment on your behalf.
Who should I appoint?
LPAs are powerful legal documents. Although your attorneys must act in your best interests at all times, you should only ever appoint attorneys whom you fully trust. Your attorney can effectively step into your shoes and do most things that you could do yourself.
You can appoint up to four attorneys, and also substitute attorneys who can step up should the appointed attorneys be unable or unwilling to act. LPAs are flexible documents which allow you to decide how you want your attorneys to act. You can add guidance or restrictions regarding when and how they should act.
You can appoint the attorneys in several ways, for example jointly or jointly and severally, or in a particular order. If attorneys are appointed jointly, they must all agree and always act together however, this can be impractical for some matters and may delay decisions that need to be taken at short notice, for example, if one attorney was out of the country. A ‘Joint and Several’ appointment means that your attorneys can act independently. You can also appoint the attorneys to act jointly in some matters, and jointly and severally in other matters should you wish to do so.
Overall, you should consider making LPAs because they can give you the peace of mind that comes from knowing attorneys whom you trust will be able to act on your behalf if you need them to.
If you wish to discuss creating an LPA, whether it be for Property and Finance or Health and Welfare, please contact Les Murray by e-mail at les.murray@hindle-campbell.co.uk or Kerrie Greenley by e-mail at kerrie.greenley@hindle-campbell.co.uk or by telephone on 0191 296 1777.