You may have heard about LPA and could have several questions about its usefulness as you move into later life. In this post, Donna Holmes, Partner for Anthony Collins Solicitors LLP, breaks down the topic into digestible segments to make any potential decision-making process about LPA more straightforward if the time comes.

The recent ITV documentary, Finding Derek, documents the battle that TV personality Kate Garraway’s family has faced; her husband Derek Draper having contracted COVID-19 and been in hospital – and indeed in coma – for much of the last year.

One of the key points from the documentary was the personal challenges that Kate has faced in dealing with the family’s financial position and accessing Derek’s money whilst he has been unable to do anything for himself. This highlighted the importance of LPA in covering off unforeseen (and hopefully unlikely) events that sadly sometimes materialise.

If a well-known TV personality who seems to ‘have it all’ can’t easily navigate her way around the issues she and her family have faced without the necessary legal documents, it is a salutary reminder of the importance of ensuring we think and plan ahead to protect our loved ones.

What is an LPA?

In short, an LPA is a legal document that enables the person who is making the LPA (called ‘the Donor’), to appoint a person or people of their own choice and who they trust, to be able to take over decision making (and action) on their behalf if they are unable to do so.

An LPA enables a Donor to appoint their chosen people (called ‘Attorneys’) to be able to act on their behalf and make decisions for them if they lose capacity in the future. A loss of capacity might be temporary due to short term illness or injury which the Donor makes a recovery from in time. Or it might be a permanent loss of capacity.

Attorneys can effectively stand in the Donor’s shoes and take the action they could have taken for themselves if they were able to do so. There are two forms of LPA available – one for financial decisions and one for health and care decisions.

Can an LPA only be used if the Donor has lost capacity?

A health and care decisions LPA can only be used if the donor has lost capacity. In this, no one can make decisions about your care for you if you can make those decision for yourself.

However, a Donor of a financial LPA can choose to enable their Attorney(s) to use the LPA to act on their authority and instruction before they have lost capacity, should they wish to do so. This might be useful if the Donor is having issues leaving the house or signing documents or perhaps struggles to use a phone and it would be helpful for someone else to take practical steps on their behalf.

In these cases, the Donor can still make decisions for themselves, but the Attorney(s) can undertake the practical action that might be needed. The thought of delegating sitting on automated phonelines for an hour before you can speak to someone is definitely a job the Attorney(s) can be asked to do!

Why would I need an LPA (or two)?

When clients speak to me about LPAs, I often ask them if they have buildings and contents insurance on their property. Most answer with a resounding ‘of course – I need it just in case we have a fire or flood’. My answer about LPAs is the same. You hope you will always have capacity and never have an illness or injury that leaves you without capacity for any period of time. But what if you do? What happens then? The LPA is the ‘insurance policy’ in those circumstances; ensuring a Donor’s chosen Attorney(s) can look after their financial needs and welfare if they are unable to do so for themselves.

In addition, especially if a sudden event such as an accident or stroke left a Donor incapacitated, having the appropriate legal documentation in place can take away a layer of stress for their loved ones and enable them to concentrate their time and energies on the Donor – rather than on practicalities, arguments about possible General Data Protection Regulation (GDPR) issues and confidentiality and possible court applications needing to be considered.

I’m also often asked if someone ‘really needs’ both forms of LPA. I would say yes. Everyone has financial matters that need to be looked after and attended to.

But what about health and care? Won’t doctors or the state ‘sort it out’? Well, they may – but if a Donor wants their family or friends or whoever is important to them to be able to be involved in those decisions and to speak on their behalf, it may be quicker, easier and less stressful for those people if they have a health and care LPA in place, to readily and easily prove the Donor wanted and authorised them to have that role, and to receive information and be involved in their decision making.

It should be noted that the law provides that those interested in someone’s welfare should be involved in and consulted about their decision making if they lacked capacity. But, an LPA ensures that the chosen Attorney(s) can easily evidence that they should be involved without needing to jump through procedural and compliance hoops to ensure that they know you and fall within the categories of people that can and should be involved.

Again, it is about making what would be an already stressful situation for loved ones easier and administratively less cumbersome; enabling them to spend their available time and attention on you rather than on practicalities.

So, who should be appointed as Attorney(s)?

When it comes to choosing Attorney(s) the important, deciding factor should be that they are people the Donor trusts absolutely. Ultimately, the appointed Attorney(s) could be deciding how a Donor’s money is invested and spent, which care home they reside in or what medical treatment they receive. It is therefore most important that the Donor really trusts them and the views of the Donor and Attorney(s) align.

Whilst the Donor can provide guidance and could even limit the powers that they give to their Attorney(s) to seek to control the situation, it would be much better to trust the Attorney(s) absolutely.

My recommendation would be to appoint two to three people that fall into this highly trusted category. People who the Donor knows can work effectively together, to be your Attorneys on both joint and several liability. This means if one of them is ill, away on holiday or if they die before the Donor, the Donor still has Attorneys ready and able to act on their behalf.

How do I make an LPA (or two)?

The best starting point if you are considering putting an LPA in place would be to have a look at the GOV.UK website. It sets out a range of background information and useful guidance as well as providing links to the forms.

It is important to carefully read the guidance and make sure the LPA forms are drafted to include all the powers your Attorney(s) might need. This is where the professional advice of a solicitor – particularly one who is accredited through the Society of Trust and Estate Practitioners (STEP) and/or Solicitors for the Elderly (SFE) can be really helpful.

As well as preparing the LPA forms, the Donor also needs to have a certificate provider to confirm they have the necessary mental capacity to put the LPA(s) in place. A solicitor can help with this too; especially in these times of COVID-19 restrictions which might make some of the signing practicalities more difficult than normal. Professional advice can ensure documentation is all fully in order and that appointed Attorneys aren’t left with a problem – or lack of necessary powers – at a later point in time when they might need to use the LPAs.

How do you ‘use’ an LPA?

Once an LPA has been made and signed by the Donor and Attorney(s), it has to be sent to the Office of the Public Guardian. This is a Government organisation for registration. Once the registration process is complete, the document has various official stamps and a perforation throughout to confirm it has been registered, is validated and can be used.

A certified copy of the LPA can then be produced to the relevant organisations for them to update their records to reflect that Attorneys are appointed and can act on a Donor’s behalf.

In financial matters, this will require the Donor’s bank, financial adviser, utility companies etc. to be sent a certified copy of the LPA. It may also require the Attorney(s) to provide proof of their identity and complete signature verification checks.

In the case of health and care, a copy of the LPA may need to be presented to treating doctors, a care home manager or social workers.

Donors can certify their own LPAs or solicitors can provide solicitor certified copies. This means that the original document shouldn’t need to be circulated and can be kept safe.

What if someone has lost capacity but didn’t have an LPA?

In an ideal world, everyone would have their LPAs in place and sorted long before they may need them. However, sometimes a sudden change of circumstances happens or there is no one who can be appointed as an Attorney. In those circumstances a person’s finances may well still need to be dealt with and it may be necessary for an application to the Court of Protection to be made for the appointment of a Deputy. If state benefit income is all a person has, a Department for Work and Pensions (DWP) appointeeship might be possible as an alternative.

Conclusion

In summary, LPAs are really useful documents. They enable Donors to make decisions now about how their financial and care decisions will be able to be made in the future; and who will be involved in those decisions, should the Donor lose capacity. This can provide both Donors with having peace of mind to know that loved ones will have one less practical thing to think about and do at what would already be a stressful time.

If you need any further advice about making an LPA or, if someone you know has lost capacity and doesn’t have an LPA in place, contact donna.holmes@anthonycollins.com


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