Why is an LPA needed?

 

In this modern age we are all too familiar with the restrictions of Data Protection and Privacy. The utility companies won't talk to anyone other than the person named on the bill, the bank won't let you deal with someone else's account and the doctors are not supposed to disclose details of anyone's health conditions - and legally these things apply even if it is a husband or wife who is trying to sort things out.

 

Of course it is only right and proper that our lives are protected, but it can be a real issue especially as we become frail, fall ill or face practical problems dealing with things for ourselves. That is why the law provides a carefully controlled mechanism to handle this. The Mental Capacity Act of 2005 put in place Lasting Power of Attorney documents, whereby an individual can specify officially who they choose to manage things on their behalf. There are two types of LPA

• LPA-Property & Financial Affairs: As the name suggests, this allows the attorneys to deal with all your financial affairs such as savings, pensions, utilies and also to make decisions regarding any property that you own. Attorneys cannot go behind your back and they must always act in your best interests.  
• LPA-Health & Welfare: This covers matters such as talking to your doctor regarding your health, or being able to choose where you live - but ONLY if you are unable to make these sorts of decisions yourself.

 

When is an LPA needed?

 

In order to create an LPA you must have mental capacity. That means you must understand what you are doing and be able to make your own decisions, free from undue pressure by those around you. Part of the process involves someone certifying that you do indeed have mental capacity as you sign.

 

Hopefully it is obvious that leaving it until you are very ill could mean that it is left too late. Even if you still understand fully what you are doing, the fact of being pressured into a rushed decision at a time of sudden deterioration in health means that you are more likely to make bad choices.

 

However, just as worrying are the situations where someone has a gradually worsening condition - the sort of things that creep up on us as we grow older. We can manage in the familiarity and routine of our own home, perhaps with those around us just noticing that we are getting a bit forgetful. It is only when we are faced with something new that it becomes clear that there is a problem. Unfortunately by then our struggles to understand what is going on could mean that we are suspicious of appointing anyone to be our attorney - or we just go along with the first person who suggests taking over, forgetting that they might not be the most trustworthy choice.

 

Having a diagnosis of the early stages of dementia does not mean that an LPA cannot be created, but it does mean that the certification of mental capacity needs to be handled very carefully. It also means that LPAs should be created immediately, not put off yet again. In fact, if those around you think that you might be starting to struggle then there is no reason to delay.

 

Once any LPA is created it has to be registered before it can be used. Generally this can take anything between 2 and 5 months - assuming that there are no problems with the form. Whilst waiting for registration attorneys do not have any legal authority to act.

 

All in all it should be clear that creating LPAs is not something to be put off. All adults should consider putting them in place, but as a rule of thumb InHouse Wills suggests that approaching retirement age should be the reminder to not leave it any longer. Hopefully you won't actually need them, but without LPAs in place you and your family could face major problems ahead.

If there is no LPA in place...

 

Without an LPA in place, if you lose mental capacity no one can make decisions for you - not even your spouse. Instead it is the authories, often social services, who have the legal authority to make decisions such as deciding where you live.

 

If family or friends are prepared to deal with the hassle then they can apply to the Court of Protection, to be appointed your deputy. This would give them authority similar to that of an attorney, but with closer supervision from the court. Typically the process typically takes 6-12 months, with initial costs in excess of £1,000 and involves regular ongoing costs of hundreds of pounds every year. Depending upon the circumstances multiple applications might need to be made and the court may limit the scope of authority given to deputies. In addition it means that you have not chosen the deputies, so that you have no control over who is appointed.