It’s difficult to think of a time in the future when we may struggle to make important decisions regarding our own personal welfare. Yet no matter how distant that day seems, it always pays to plan ahead and prepare for every eventuality.
That is why many people choose to think ahead and register a Lasting Power of Attorney (LPA) while they are capable of doing so. Failing to do so means that a person runs the risk of leaving key decisions about their health, welfare and finances to chance. This is never advisable.
What is a Power of Attorney?
A Lasting Power of Attorney (LPA) is a formal legal document that grants an acknowledged party, known as the attorney, authority to make important financial decisions on another person’s behalf. The person making the LPA is known as the donor. This could be temporary – for example, if you are in hospital for a short time and require help to pay your bills – or part of a longer-term plan in preparation for a move abroad, or the onset of ill health.
People are generally required to register two separate LPAs: one for their property and financial affairs, and another for their health and welfare affairs. These documents can be registered with a solicitor at the same time, and often form part of a wider conversation around a person’s Will. When registering their LPA, the donor must be of sound mind and have the capacity to understand exactly who they are designating as their attorney(s), as well as the full remit of responsibility around their personal affairs that they are choosing to delegate.
Once an LPA has been registered, the attorney has the legal right to manage the donor’s bank account, bills, property, pension for as long as necessary. As for healthcare, the attorney has the power to manage the donor’s daily routine, clinical care, living arrangements or life-sustaining medical treatment, only in the event that person loses the mental capacity to make those decisions.
Can You Have More Than One Attorney?
Yes, it is possible to register several attorneys under the same LPA should the person wish the responsibility to be shared between more than one person. However, it is essential to clarify whether these people hold the power to act separately, or whether they must reach a joint agreement on any decision they make. Defining the parameters in this way safeguards against the possibility of any disputes arising between the attorneys further down the line.
How to Register a Lasting Power of Attorney
If you’re thinking about registering an LPA yourself, the first step is to designate and notify the person, or people, that you are trusting to handle your affairs in case of an emergency. From there, it’s important to think about the specific terms of your LPA and in what event they should come into effect.
Consulting a solicitor is advisable, particularly if the terms of your LPA are complex. This will ensure the management of your welfare and finances is absolutely clear from a legal perspective before submitting the LPA to the Office of the Public Guardian (OPG), who will then confirm and validate the document.
What Happens if you Don’t Register a Power of Attorney?
An LPA must be registered directly by the donor themselves; it cannot be registered by a member of their family on their behalf under any circumstances. However, it is not uncommon for a family to realise that one of their relatives cannot handle his/her affairs when it is already past the point that the person can legally register a lasting power of attorney.
If the prospective donor did not register an LPA, it will be left to a court to decide who is appointed to manage their welfare and finances. The family will have no control over the court’s decision in this respect, and it often drags the process out for far longer than if the donor registered their LPA ahead of time.
Can the Terms of a Lasting Power of Attorney be Changed or Cancelled?
Although changing specific terms of an LPA may be challenging, it is certainly possible to cancel an LPA at any time by preparing a formal revocation document that details the donor’s intention to declare the existing LPA as invalid.
As before, the donor must still be of sound mind when submitting their revocation request. They must also inform their initial attorney(s) of their intention to cancel the LPA. If they do not do this then the attorney may still retain power of attorney, which means they still have the legal right to act on behalf of the donor. Once all relevant parties are informed, a new LPA can then be drafted and submitted to the Office of the Public Guardian for validation.
When Does a Person Lack Mental Capacity?
Knowing whether somebody has sufficient mental capacity to make decisions for themselves is a central element of the power of attorney process, and in determining when the document is due to come into effect.
If the donor cannot make decisions for themselves because of an illness or disability, they can be said to lack sufficient mental capacity. Whether temporary or permanent, there are a range of causes that may determine whether or not a person can make informed decisions by themselves – from brain injury or dementia, to alcohol or drug misuse.
It is possible to determine whether a person holds the necessary mental capacity by confirming whether or not they can:
Give a clear indication that they understand the information that is presented to them, whether verbally or through sign language.
Recall previous information that has been clearly explained to them.
Communicate their decision beyond doubt.
If concerns are raised and it turns out that the donor cannot satisfactorily meet these requirements, the power of attorney they have previously registered is liable to come into effect.
Regardless of your situation, if you’re looking to set up a Power of Attorney yourself, or are dealing with issues relating to an LPA, then we are here to help with friendly, expert legal support and advice.