Lasting Powers of Attorney (LPAs): Your Top 5 Essential Questions Answered

Introduction:

Considering a Lasting Power of Attorney (LPA) is a significant step towards securing your future and protecting your loved ones. However, the world of LPAs can sometimes feel complex, leaving many with fundamental questions about what they are, how they work, and why they're so important.

At Westwood Estate Planning, we believe in providing clear, reliable information to empower you. This article will answer the top 5 questions we hear most often about LPAs, giving you the clarity you need to make informed decisions. We'll cover the types of LPAs, the critical consequences of not having one, how to choose your attorneys wisely, when LPAs become effective, and the key responsibilities of those acting on your behalf.

1. What Exactly is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney (LPA) is a powerful legal document that allows you, while you still have the mental capacity to make your own decisions, to appoint trusted individuals – known as 'attorneys' – to manage your affairs if you ever lose the ability to do so yourself. It's your way of ensuring your wishes are respected and your future is protected, even if you can no longer speak for yourself.

There are two distinct types of LPAs in the UK:

• Property and Financial Affairs LPA (LP1F): This document grants your chosen attorneys the authority to make decisions about your money and property. This can include managing bank accounts, paying bills, collecting benefits or pensions, and even buying or selling property on your behalf. Once registered with the Office of the Public Guardian (OPG), this type of LPA can be used either before or after you lose mental capacity, depending on your preference.

• Health and Welfare LPA (LP1H): This LPA covers decisions about your daily routine, medical treatment, and where you live. Importantly, attorneys can only act under this type of LPA once you have lost mental capacity to make those specific health and welfare decisions for yourself.

Anyone aged 18 or over with the necessary mental capacity can create an LPA. It's a significant decision that truly benefits from professional discussion to ensure it's tailored to your unique circumstances.

2. The Critical Question: What Happens If You DON'T Have an LPA?

This is perhaps one of the most vital questions to consider, as it highlights the potential challenges of not having an LPA in place. If you lose mental capacity without having executed an LPA, your loved ones won't automatically have the legal authority to manage your affairs. Instead, someone will have to apply to the Court of Protection (COP) to be appointed as a 'Deputy'.

This Deputyship process comes with several significant disadvantages:

• Loss of Choice: You lose the ability to choose who manages your affairs; the Court will decide who is appointed as your Deputy.

• Costly: There are application fees, assessment fees, and ongoing annual supervision fees, which can be substantial and often exceed the cost of setting up an LPA.

• Time-Consuming: Obtaining a Deputyship Order can be a lengthy process, often taking anywhere from 12 to 18 months. During this time, your financial affairs and welfare decisions could be in limbo, causing significant stress for your family.

• Lack of Control: A Deputy's powers are often more restrictive than those granted in an LPA, and their actions are subject to ongoing Court supervision.

In stark contrast, creating and registering an LPA is considerably quicker – typically 10 to 16 weeks for registration – and significantly more cost-effective. It ensures you maintain control over who makes decisions for you, and how they do so, even if you lose capacity.

3. Choosing Your Attorneys: Why 'Jointly' vs. 'Jointly & Severally' is CRUCIAL

When you decide to create an LPA, a critical choice is how you appoint your attorneys. This isn't just a legal technicality; it has profound practical implications for how they can act on your behalf. You can appoint them in three main ways: 'jointly,' 'jointly and severally,' or a combination of both.

Let's look at the two most common methods:

• 'Jointly': If you appoint attorneys 'jointly,' it means they must all agree and act together on every single decision. The major pitfall here is that if just one of your jointly appointed attorneys becomes unable or unwilling to act – perhaps they're unwell, on holiday, or even pass away – the entire LPA can become unusable, unless you've appointed a replacement to step into that specific role. This can force your family into that costly and time-consuming Court of Protection application we just discussed.

• 'Jointly and Severally': This is often the preferred method due to its flexibility. It means your attorneys can act separately or together. If one attorney becomes unavailable, the others can continue to act without interruption. This provides much greater resilience and ensures your affairs can always be managed efficiently, even if circumstances change for one of your attorneys.

Thoughtful attorney appointment is truly crucial, and considering replacement attorneys is also highly advisable to prevent your LPA from failing.

4. When Does an LPA Actually Come Into Effect and How is it Used?

A common misconception is that an LPA is effective the moment you sign it. That's not quite right. For an LPA to be legally valid and usable, it must be registered with the Office of the Public Guardian (OPG). The OPG is the government body responsible for registering LPAs and supervising deputies.

Here's a quick overview of when your attorneys can act:

• Property and Financial Affairs LPA: Once registered, your attorneys can act on your behalf either while you still have mental capacity (if you choose to grant them this power) or after you lose it. This flexibility can be very useful for managing affairs if you're, for example, travelling for an extended period or simply prefer someone else to handle certain financial matters.

• Health and Welfare LPA: This type of LPA can only be used once you have lost the mental capacity to make those specific health and welfare decisions for yourself.

The registration process can take several weeks (currently around 10-16 weeks). This is why we often advise clients to register their LPAs immediately after creation. This proactive step ensures that the document is ready to be used the moment it's needed, providing continuous control and avoiding potential delays during a crisis.

5. The Attorney's Role: What Are Their Responsibilities?

Being an attorney is a significant responsibility, and it comes with clear legal duties. Your attorneys must always act in accordance with the Mental Capacity Act 2005 and have regard for its Code of Practice, which provides detailed guidance.

Key responsibilities include:

• Acting in Your Best Interests: Every decision they make must be in your best interests, not theirs or anyone else's. This is a fundamental principle of the Mental Capacity Act.

• Supporting Your Decisions: They must always try to help you make your own decisions first, even if your capacity fluctuates. The law presumes you have capacity unless proven otherwise, and they must provide all appropriate help to enable you to make decisions yourself.

• Keeping Records: For Property and Financial Affairs LPAs, attorneys have a legal duty to keep accurate accounts of all your money and property.

• No Personal Benefit: They cannot benefit themselves from their role, unless you have specifically authorised this in the LPA (e.g., for professional attorneys).

• Confidentiality: They have a duty to keep your affairs confidential unless you have consented otherwise.

It's crucial that your attorneys understand these duties. Ongoing communication with them is vital, ensuring they are prepared and confident in their role, should they ever need to step in. Failure to execute these duties properly can lead to serious consequences, including legal action.

Frequently Asked Questions (FAQs) about LPAs#

Here are a few quick answers to other common questions we receive about Lasting Powers of Attorney:

• Can I have just one LPA, or do I need both types?

You can choose to have either a Property and Financial Affairs LPA, a Health and Welfare LPA, or both. We generally recommend having both to ensure comprehensive protection for all aspects of your life.

• Do I need a Will writer or solicitor to make an LPA?

While you can complete LPA forms yourself, many people choose to use a professional Will writer or solicitor. This ensures the documents are correctly drafted, legally sound, and tailored to your specific wishes, avoiding potential errors that could invalidate them.

• What if my chosen attorney lives abroad?

While it's preferable to appoint attorneys who are readily available, an attorney does not have to reside in the UK. However, you should consider the practicalities of them being able to make urgent decisions if they are not easily accessible.

WEP's Approach: Expert Guidance for Your Peace of Mind

At Westwood Estate Planning, we believe that putting LPAs in place should be a clear, empathetic, and reassuring process. Our focus is on providing expert guidance and ongoing support, ensuring your LPAs are not just legally sound, but truly reflect your wishes and provide the lasting peace of mind you deserve. We navigate the complexities so you don't have to, preparing your documents to withstand any unforeseen circumstances.

Conclusion:

Understanding these five key aspects of Lasting Powers of Attorney, along with these common FAQs, is crucial for anyone considering this vital step. LPAs offer unparalleled control and protection for your future, ensuring that your wishes are honoured and your loved ones are spared unnecessary stress and financial burden. While the information can seem daunting, professional guidance can simplify the process and ensure your documents are robust and effective.

Call to Action:

If you have more questions about Lasting Powers of Attorney, or if you'd like to discuss your specific situation and how Westwood Estate Planning can help you put robust LPAs in place with clarity and confidence, we invite you to take the next step. Click here (https://calendly.com/westwoodep/chat) to book a complimentary, no-obligation 15-minute chat with us today. We're here to help make the process as simple and stress-free as possible.