Lasting Powers of Attorney – The Basics
Lasting Powers of Attorney
It is within our human nature to want to assist those we care about when, through old age or incapacitating mental illness, they are unable to look after aspects of their lives themselves. However, as many discover when they seek to help a relative with a bank account or pension, good intentions alone will not always enable you to assist.
The reason for this is that banks and other organisations have a duty of care towards their customers so cannot act on anybody else’s instructions without authority from their customer. When a customer has the capacity they may give and remove such authority with the organisation. However, authority is automatically revoked if the customer looses capacity, which is arguably the time when they are most likely to need support.
How do I appoint someone to look after my affairs if I become mentally incapable?
A Lasting Power of Attorney (LPA) is a form of authority for someone else to act on your behalf which continues (or lasts) after capacity has been lost.
There are two types:
Property and Financial Affairs – which enables the person you have appointed to deal with your bank accounts and property.
Health and Welfare – which enables your attorney to make decisions about your care and medical treatment, including giving you the option to select whether they may make decisions over life sustaining treatment.
An LPA must be registered with the Court before it can be used. This can be done by the person making the LPA or, after they have lost mental capacity, by the person they appoint.
I have registered an LPA but want to change the person I have appointed – is this possible?
So long as you still have capacity you may revoke an existing LPA, it is advisable to do this by deed. It is important to keep organisations who knew about the LPA informed if you revoke it so that they no longer use it. You can then make a replacement LPA.
If you have lost capacity the Court has the power to remove the person you appointed if they are not acting in your interests.
What is the test for mental capacity?
The test for capacity is set out in Mental Capacity Act 2005 in summary:
- A person should be considered to have capacity until it is shown that they do not;
- Capacity is specific to the decision in question, it is therefore possible to have capacity in respect of some decisions and not others at the same time; and
- Capacity can fluctuate, just because a person is unable to make a decision one day does not mean that they will not be able to make a decision the next day.
A person should be encouraged and assisted to make decisions for themselves whenever this is possible.
What if they lack capacity but do not have an LPA?
After a person has lost capacity they are not able to appoint someone themselves but an application can be made to the Court of Protection for a Deputyship Order.
A deputy can deal with a persons affairs in a similar (although restricted) manner to an attorney appointed under an LPA. However, because there are more safeguards in place to protect the person the process is more complex.
If you have any questions about LPAs or applying for a deputyship order please contact a member of our private client department on 01202 525333.