Lasting Powers of Attorney: Protection You Hope You’ll Never Need
Most of us are happy to take out insurance. We insure our homes, our cars, even our holidays. Why? Because if something goes wrong, we want to know we’re protected. A Lasting Power of Attorney (LPA) works in the same way. You may never need it, but if you do, it can make all the difference to you and your loved ones.
You must remember that you can only make an LPA while you still have mental capacity. If illness, accident, or age takes that away, it’s too late. Just like with insurance, you don’t wait until the disaster has happened before putting cover in place.
What is a Lasting Powers of Attorney?
A lasting Powers of Attorney (often abbreviated to an LPA) is a legal document that lets you choose one or more people you trust to make decisions for you if, one day, you can’t make them yourself. There are two types and you should think of them as two separate insurance policies: one for your finances, one for your wellbeing. Together, they give you complete protection.
Property and Financial Affairs LPA
A Property and Financial Affairs LPA covers money matters like paying bills, managing bank accounts, pensions, and even selling your home if necessary.
Health and Welfare LPA
A Health and Welfare LPA covers personal matters like where you live, your daily care, and medical treatment, including life-sustaining treatment.
5 Benefits of a Lasting Power of Attorney
Whilst a Will can protect your family after you have passed, what about protecting yourself and your family should you find yourself unable to care for your own matters? In this blog by Liz Fyfe, she outlines five key benefits of having a lasting Powers of Attorney in place. Read more…
Why do Lasting Powers of Attorney Matter?
Without an LPA in place, your family doesn’t automatically have the right to step in and help if you lose capacity. Instead, they may need to apply to the Court of Protection – a process that can be long, stressful, and expensive.
By setting up LPAs in advance, you:
- Choose who makes decisions for you, rather than leaving it to the courts.
- Save your family unnecessary stress and costs.
- Have peace of mind that everything is taken care of.
Why are Both Types of LPA Important?
Many people arrange a Property and Financial Affairs LPA but overlook the Health and Welfare LPA. But health decisions are often the hardest and most emotional ones. By having both, you know you’re fully protected for your money and your care.
You may never need to rely on your LPAs, just like you may never claim on your home insurance. But if you do, you’ll be so glad they’re there.
Setting them up now is one way of avoiding extra stress and making things easier for your family and loved ones should you become incapable of managing matters for yourself at any stage in the future.
Find out more about the Six Big Questions Commonly Asked on Mental Capacity and Powers of Attorney in this article by Liz Fyfe. Read more…
Contact our Wills and Probate Solicitors in Yorkshire
If you would like to know more about Lasting Powers of Attorney or perhaps you’d like to book an appointment please get in touch and our skilled and experienced Lasting Powers of Attorney solicitors will guide you through the process.
Speak to our expert Lasting Powers of Attorney solicitors in Wakefield, Ossett, Garforth, and Sherburn in Elmet, Yorkshire today by calling 01924 290 029 or ask a question using our online enquiry form.
Lasting Powers of Attorney FAQs
An attorney can be anyone who is aged 18 or over. Usually the chosen attorney will be a spouse, a partner, a family member or a close friend. Some people choose to nominate a professional attorney, who could be a solicitor, an accountant or other relevant professional, giving you the benefit of their skills and judgement and impartiality.
It’s important to know that an attorney cannot be bankrupt if they are appointed as an attorney for property and financial affairs.
Losing mental capacity means a person can no longer make their own decisions because they are unable to understand, remember, weigh up, or communicate information related to that decision. This can be a result of conditions like severe dementia, a brain injury, or a stroke, and it means a person is legally unable to make choices about their finances, health, or welfare. Without a Lasting Powers of Attorney (LPA), a court must appoint a deputy, a process that is costly and removes the individual’s ability to choose who will make decisions on their behalf.
To create a Lasting Power of Attorney, you will need to:
• Choose an attorney or attorneys to act for you
• Fill out the appropriate form (or have your solicitor do this for you)
• Register the LPA with the Office of the Public Guardian
Creating an LPA can take up to around 3 months and it is strongly recommended to have an experienced solicitor help you with the process to ensure all of the relevant issues are correctly considered and accounted for.
A Property and Financial Affairs LPA allows someone you trust to manage your money, property, and financial matters, such as paying bills or selling your home. A Health and Welfare LPA lets them make decisions about your medical care, living arrangements, and daily routine, but only if you lose mental capacity.
Sherburn Office
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Ossett Office
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The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
What Gifts Can I Make as an Attorney?
This is a question we are asked regularly by people who have been appointed as Attorneys under an Enduring Power of Attorney, or Lasting Power of Attorney and who are looking for some guidance on their role and responsibilities.
It can be a complex area and cause confusion, so here we hope to give some clarity on what you can and cannot do in terms of making gifts from the Donor’s money.
Can I make a gift to the Donor?
The Donor is the person who has made the Power of Attorney.
Buying things, or paying for services, for them is not “gifting” it is simply using their own money for their own benefit and this is 100% what you should be doing as their Attorney.
Provided that the purchase is in the best interests of the Donor, there are no restrictions on the amount of this type of spending.
Can I make a gift to family members?
There are fixed rules around gifts to family members and these are set out at section 12 of the Mental Capacity Act 2005.
This legislation gives details of the few limited occasions on which you may make gifts to family members on the Donor’s behalf. These are:
- Birthday
- Marriage
- Civil Partnership
- Other occasion on which presents are customarily given within families. This may include for instance religious festivals.
On these occasions, you can only make gifts which are considered “reasonable” in the circumstances and in particular, reasonable in relation to the Donor’s estate. This means that if someone’s assets are in the millions, then a larger gift would be permitted than if their assets were in the thousands.
Can I make gifts to myself?
Attorneys can make gifts to themselves on the occasions set out above, but be wary of doing this – your decision to do so might be challenged. As an Attorney, you must make sure that you are always doing what is best for the Donor and be able to justify your decisions and actions to the Office of the Public Guardian at any time.
No other gifts to an Attorney are permitted. For instance, you cannot under any circumstances transfer the Donor’s house to yourself, even if this is something that they suggested themselves before they lost capacity.
If you are in any doubt about whether a gift to yourself is appropriate you can seek a one-off decision from the Court of Protection about this.
Can I make gifts to charity?
Yes. If the Donor had a habit of donating to charity regularly – e.g. via a monthly direct debit, by annual sponsorship of an event (such as Race for Life) or weekly at church services – then you are permitted to continue these donations on the Donor’s behalf.
Again, you must ensure that the gifts being made are reasonable.
What is a reasonable gift?
The amount of the gift on any of the permitted occasions must be reasonable in view of the Donor’s estate at the time the gift is made.
This means that just because 10 years ago they were able to gift £1,000 every month to family and charities, it doesn’t mean they will be able to do so now. You must therefore consider the Donor’s financial position every time you make a gift to anyone, regardless of what the Donor may have done in the past.
You cannot simply continue with the same gift as the Donor used to make without any further thought.
What if my Co-Attorney is making gifts I don’t agree with?
If you are appointed with another person to act as Attorneys on a joint and several basis, then your co-Attorney is able to make decisions without your input or agreement.
If you are worried that your co-Attorney is making gifts that are not reasonable, not in line with the Mental Capacity Act 2005’s rules or which are of concern in any way then your first step should be:
Either speak to your co-Attorney if you are comfortable doing so, to explain why you’re concerned. Communication is key and it may be that they were not aware that they were doing anything wrong and a simple chat can sort it all out.
Or, if you feel unable to have a conversation with your co-Attorney about your concerns, or you have done so and it has not been helpful, then contact the Office of the Public Guardian on 0300 456 0300 and ask them for some general guidance on how to deal with the situation. You can do this without formally reporting things to them, or giving them any details of the Donor, yourself or your co-Attorney.
If you remain concerned after doing this, then you can formally report your concerns to the Office of the Public Guardian by completing their form at (www.gov.uk/guidance/report-a-concern) or calling the same number quoted above and they will consider and investigate your concerns.
Contact us
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
Six Big Questions Commonly Asked on Mental Capacity and Powers of Attorney
Having the peace of mind knowing that, were you to become too unwell to care for our own matters, you have an appointed person who will care for your property, finances, health, and welfare were you unable to care for them yourself is important. A Lasting Powers of Attorney (LPA) is the legal document that you need to give you this peace of mind.
However, making an LPA relies upon you having what’s known as mental capacity, i.e. the ability to know what you are doing and the ramifications of any decisions you make. Assessing an individual’s mental capacity is just one step taken when making an LPA. Here are six questions that are often asked regarding mental capacity and the making of a Lasting Powers of Attorney.
What is a Lasting Power of Attorney?
In brief, a Lasting Power of Attorney, often abbreviated to LPA, is a document which you put in place during your lifetime, which allows one or more people of your choice (known as your Attorneys) to make decisions and act on your behalf if you need them to in future.
There are two types of LPA – one to deal with your property and financial matters and one to deal with your health and welfare matters.
For more detailed information about why an LPA is a useful document for you to put in place see our dedicated webpage here.
What does “Capacity” mean when doing a Lasting Powers of Attorney?
Every decision that you make requires a certain amount of mental capacity. The test for each decision is different, depending on the circumstances.
To create a Lasting Power of Attorney, the person making it, known as the Donor, must understand the nature of the LPA they are creating, and the powers it gives their chosen Attorneys.
The test that must be satisfied before you can make an LPA is set out in the Mental Capacity Act 2005.
What is the mental capacity test?
The first thing to bear in mind is that the Mental Capacity Act states that every person must be deemed to have the required capacity to make a particular decision unless it has been established that they do not.
It also specifies that just because someone makes a decision that you consider to be unwise, that does not mean they don’t have capacity.
To make a Lasting Powers of Attorney, the Donor must meet four criteria.
- Understand what an LPA is, the decisions that the Attorneys will be able to make, and when the Attorney will be able to make them;
- Retain this information for long enough to make the decision;
- Use and weigh this information to make an informed decision about whether to make the LPA; and
- Be able to communicate their decision (by speech, sign language, in writing or by some other method).
If any of these four things are missing, then the person is unlikely to have capacity to make an LPA.
When does the solicitor apply the mental capacity test?
The test is applied by solicitors at the first meeting, throughout the progress of the matter, and on the day the Donor signs the LPA(s).
People’s capacity can change day-to-day, especially if they take medication or suffer from a short-term condition which, for example, reduces concentration. Your solicitor will bear this in mind, but you need to make sure that your solicitor know of any medications or medical conditions that might have an impact on things like your memory, your understanding, or your concentration.
What if the solicitor isn’t sure?
If the solicitor is not sure whether or not you have capacity to make an LPA then they will raise this with you and suggest an independent capacity assessment.
They will prepare a detailed letter of instruction to the person doing the assessment, detailing the findings of the test they have already performed and what the assessor needs to look for and report on.
If the assessment confirms that you do have capacity to make an LPA, then the solicitor can proceed but they might ask the assessor to be the Certificate Provider for your LPA in due course.
If the assessment confirms that you do not have capacity to make an LPA, then the solicitor cannot do any further work for you in relation to your LPA(s).
Are there any options when someone doesn’t have the mental capacity to make an LPA?
Yes. All is not necessarily lost if someone is found not to have capacity to make Lasting Powers of Attorney for themselves.
It is possible for an application to be made to Court, asking the Court to appoint someone appropriate as a Deputy for the person, because they cannot make decisions or act for themselves. These applications are made to the Court of Protection and usually take some time to finish.
You would have to provide the Court with good evidence that you being appointed as their Deputy would be in that person’s best interests. You will also have to provide them with details of that person’s finances, living arrangements and family members.
The limitations of this route are the time it takes to get the Order, the much stricter supervision of Deputies as compared to Attorneys, and the fact that, except in very exceptional circumstances, the Deputyship Order will only allow you to make decisions in relation to that person’s property and finances. Deputyship Orders in relation to health and welfare decisions are very rare.
Contact us
Sherburn Office
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Ossett Office
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The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
Who Can Make Decisions When Someone Has Lost Mental Capacity and There Is No Lasting Power of Attorney in Place?
When someone loses mental capacity it can be an upsetting and difficult time for family and friends. This can be made even more difficult if the person who has lost mental capacity doesn’t have a Lasting Power of Attorney in place meaning that there is nobody with the authority to care for the individuals finances or health and welfare decisions.
What is the Definition of Mental Capacity?
A Lasting Power of Attorney (known as an LPA) can only be put in place whilst a person has mental capacity. Mental capacity can be defined as ‘having the ability to understand information and make decisions about your life’. A loss of capacity may mean that a person’s ability to make decisions is affected. This could be due to a form of dementia, learning disability or brain injury and not always due to old age. The mental capacity of an individual can be assessed by a medical professional such as a doctor.
What is a Deputy?
In some cases, an individual may have lost capacity before they put a Lasting Power of Attorney in place. Read our blog 5 Reasons to Put a Lasting Power of Attorney in Place for more information. If an individual has lost mental capacity and they do not have a Lasting Power of Attorney in place, then it is possible to apply to the Court of Protection to be a deputy.
A deputy is usually a family member or someone who knows the person well. However, if there is no friend or family member who is suitable or willing to act as a deputy, the Court of Protection can appoint a professional deputy. In some cases, there may be more than one deputy appointed who can act together in the matter however they could be asked to act together and independently meaning they can do either. A deputy has the responsibility of making decisions on behalf of the person who lacks capacity.
The deputy must ensure they:
- Make sure the decision is in the best interest of that person
- Help the person to understand why this decision has been made
- Involve professionals such as doctors if required
The deputy must ensure they do not:
- Make a decision that benefits them and is not in the best interest of the persons welfare
- Make a Will for the person or amend their existing Will
- Hold money in their own name on behalf of the person
- Assume that a decision previously made is the best decision for everything
What is Property and Financial Affairs Deputyship?
This allows a person to make decisions relation to their money and property. They may need to manage their income and outgoings such as the receipt of any state benefits and ensure that bills and care fees are paid for. In some cases, a person may need to sell their property due to care requirements, the deputy would have the responsibility of managing this.
Furthermore, the deputy must use the assets under their control in a way which benefits the individual who lacks mental capacity and make decisions which is in their best interest.
What is Personal Welfare Deputyship?
This allows a person to make decisions regarding a person’s health and welfare. This could include day-to-day care including what a person wears, their diet or their social activities. Additionally, the deputy must consent to any medical treatment a person may need and ensure this decision is beneficial for that person. If the deputy is unsure, they may need to ask for advice from a different professional such as a consultant or doctor.
Contact us
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
