20 January 2021
Understanding Lasting Power of Attorney
In the current climate it is more important than ever to ensure that we have our affairs in order.
The events of the past year have made it increasingly difficult for individuals to deal with their day-to-day legal and financial affairs and the ongoing Covid lockdown restrictions will no doubt be a concern for those individuals choosing/having to self-isolate. If this is something that you or a family member are concerned about, you/they may wish to consider making a Lasting Power of Attorney (“LPA”).
An LPA is a legal document where a person gives another person or persons authority to make certain decisions on their behalf.
There are two types of LPA :-
- A Property & Affairs LPA, which allows your attorney(s) authority to deal with your property and finances – including banking, utilities, pensions etc
- A Health & Welfare LPA, which allows your attorney(s) to make welfare and health care decisions on your behalf, only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of “life sustaining treatment”.
If an individual does not have an LPA, or the equivalent Enduring Power of Attorney (“EPA”) that was able to be made pre-October 2007, no-one (including even their Spouse or family members) will be authorised to act on their behalf – unless they have been granted the relevant authority at individual organisations. This may cause great difficulty for family members wanting to assist relatives who are unable to deal with their affairs themselves for whatever reason – including even simple day-to-day banking etc.
Although most care and treatment decisions can be made without the need for an LPA, the Data Protection Act 2018 and the UK’s implementation of the General Data Protection Regulation (GDPR) has resulted in some medical/care organisations refusing to consult with and include family members (including Spouses, children and “next of kin”) in decision making without legal authority such as an LPA.
An LPA is a lifetime power and, once the documents have been signed by all parties and registered at the Office of the Public Guardian, the nominated attorney(s) will be able to act on the person’s behalf whenever they are required to do so – even if the person were to lose mental capacity at a later date.
It is important to note that an LPA cannot be made once a person loses the capacity to make their own decisions. If an individual does not have an LPA / EPA and they lack capacity to make a decision, then it will be necessary for an application to be made to the Court of Protection for an appropriate Order appointing another person to make decisions on their behalf. This process is both very costly and it can take up to 12 months for an Order to be made, at a time when many decisions requiring either an Order or an LPA/EPA may need to be made on a person’s behalf.
If you wish to consider making an LPA please telephone the Wills, Trusts and Probate Department on (0191) 5666536 for a further discussion or, alternatively, e-mail firstname.lastname@example.org