LEGAL EAGLE: Answering your questions on Lasting Powers of Attorney
Q: What are Lasting Powers of Attorney?
A: An LPA is a legal document which allows you give another person or people the legal power to make decisions on your behalf. These decisions can be in relation to either your property and finances or your health and welfare. You must have mental capacity at the time of making an LPA. LPAs for health and welfare can only be used from the point you lack capacity. LPAs for property and finance can be used immediately if you wish.
Q: Who can I appoint as my Attorney?
A: You can appoint any individual over the age of 18, who has mental capacity. Your attorney can be your partner, family member, friend, or a professional. There is no limit to the number of people you can appoint as your attorney. If you have more than one attorney, they can act jointly, meaning all attorneys need to act together, or joint and severally, meaning attorneys can act together or on their own. However, for property and finances, the attorney cannot be bankrupt or have a debt relief order.
Q: What is meant by Mental Capacity?
A: To make an LPA, you must have mental capacity to do so at the time you sign the document.
Mental capacity is the ability to understand, retain and weigh up and communicate information relevant to the decision in question.. Therefore, at the time of making and signing the LPA you must understand the concept and consequences of handing over responsibility of your affairs to your attorney(s).
Q: Will I be able to make decisions about my partner’s finances and health care without an LPA,
should they lose capacity?
A: No. Without an LPA you do not have the legal authority to deal with their affairs, save that you
would be able to deal with any state benefits by obtaining an appointeeship from the Department of Work and Pensions. However that would not enable you to deal with bank accounts, or private pensions.
Q: What if someone already lacks capacity?
A: If a person lacks capacity, they will not be able to make an LPA. Instead an application would need to be made to the Court of Protection to appoint a property and affairs deputy to obtain the legal authority to make financial decisions on someone else behalf. A deputy is appointed by the Court of Protection to manage the affairs of the person who does not have mental capacity. A deputy can be a friend, partner, or family member, but it can also be a professional such as a solicitor or a professional appointed by the Court of Protection.
If you would like further advice on Lasting Powers of Attorney please contact Ben Hoare Bell LLP solicitors on 0191 565 3112 or email [email protected] Visit www.benhoarebell.co.uk for further information.