Lasting Powers of

Attorney Taking Control of Your Future

Gary Coleman, Partner, KWW Solicitors

January 2014

Telephone: 0208 979 1131Email: coleman@kww.co.uk

Contents

• Introduction to KWW Solicitors

• Background – Demographics, Mental Health Act

• Property and Financial LPA

• Health and Welfare LPA

• How To Set Up an LPA

• Choosing an Attorney

• Making Decisions on Your Behalf

• Living Wills – Advance Decisions and Statements

• Costs

• Questions

Longevity Comes With a Price

What is Mental Capacity?

• Having mental capacity means a person is able to

make their own decisions

• If you’re unable to make your own decisions at some

point in the future, someone else will need to do so

• These could be decisions about your property and

financial affairs, such as paying your mortgage,

investing your savings or buying items you need, or

decisions about your personal welfare, such as

what you should eat, or what type of medical treatment you should have.

What is Mental Capacity?

• Before someone can make a decision on your

behalf, they must have reasonable belief that you

cannot make that particular decision yourself.

• The words ‘reasonable belief’ are important

because capacity can change over time. The

person making a decision for you must make sure

they are acting in your best interests.

Lasting Powers of Attorney

• A way of giving someone you trust the legal

authority to make decisions on your behalf if you

lack mental capacity at some time in the future

or no longer wish to make decisions for yourself

• Valid only in England and Wales

• Replaced Enduring Powers of Attorney in 2007

• Two types: Property & Financial; Personal

Welfare.

Lasting Powers of Attorney

• A way of giving someone you trust the legal

authority to make decisions on your behalf if you

lack mental capacity at some time in the future

or no longer wish to make decisions for yourself

• Valid only in England and Wales

• Replaced Enduring Powers of Attorney in 2007

• Two types: Property & Financial; Personal

Welfare.

A Word of Caution

• Your Power of Attorney is possibly the most

serious document you will ever write

• Everyone has their own circumstances that need

to be established and recorded correctly

• You should be wary about attempting the

process using an online service or doing it yourself

as the document may fail and/or result in an

undesired outcome.

Property & Financial Affairs LPA

An attorney (the person who makes decisions for

you) can generally make decisions on things such

as:

o Buying or selling property

o Paying the mortgage

oGiving people access to the financial

information of the donor (person who creates

the LPA)

o Investing money

o Paying bills

o Arranging repairs to the property.

Personal Welfare LPA

Covers decisions about healthcare and personal

welfare. Attorneys can generally make decisions

about:

oWhere the donor should live

oWhether the donor should consent to a

certain type of medical treatment

oWho they should have contact with

oWhat they should eat

oWhat social activities they

should take part in.

When is an LPA Valid?

• An LPA will be valid only if you have the mental

capacity to set it up and have not been put under

any pressure to create it. It must be your

decision and you must be able to trust your

attorney

• The LPA must be signed by a certificate

provider who confirms you understand it and

haven’t been put under any pressure to sign it.

They must be someone you know well or a

professional person

• The LPA must be registered with the Office of

the Public Guardian before it can be used.

Setting up an LPA

• STEP 1: Choose your attorney - a person/s you

trust, who will act in accordance with your

instructions and who you know will have your

best interests at heart if you are incapacitated

• STEP 2: Decide which LPA you want. Or you

may wish to have both

• STEP 3: Get the LPA forms and information

pack from the Office of Public Guardian,

download them,

or talk to KWW and we can do it all for you.

Setting up an LPA

• STEP 4: Appoint a certificate provider. This is

someone who speaks with you privately to

ensure you know what powers you are giving to

your attorney, that there has been no fraud or

pressure and who certifies that you fully

understand what you are doing. Cannot be a

family member!

• STEP 5: Register the forms at the Office of

Public Guardian in the UK and Wales. Can take

up to

10 weeks.

Choosing an Attorney

• The role of attorney involves a great deal of

power and responsibility. You should trust the

person

• Your attorney could be a family member, a

friend, your spouse, partner or civil partner. Or

they could be a professional, such as a solicitor

• Attorneys can claim back expenses they incur as

a result of their role. They can claim these from

your money, keeping an account of any

expenses and relevant receipts.

Making Decisions on Your Behalf

When someone is acting as your attorney under a

LPA they have to follow certain principles set out in

the Mental Capacity Act. These are aimed at

making sure you are able to make your own

decisions as much as possible, and that if this is

not possible, your attorney makes the right

decisions on your behalf.

Principles of Decision-Making

• Presumption of capacity: Unless it can established otherwise

• The right to be supported to make a decision: All practical steps must be taken to help a person make their own decision

• The right to make what appears to be unwise decisions

• Best interests (see over)

• Least restrictive intervention: Having considered all effective alternatives.

Best Interests: How Can I Be Sure?

When someone takes a decision in your best interests they

must:

o Do everything possible to encourage you to

participate in the decision-making

o Consider your past and present feelings, taking into

account any statement of your wishes

o Consider your feelings, beliefs and values and consult

with family, carers and friends, who might know about

how these would affect your decisions

o Always remember your right to privacy

o Know about any exceptions such as decision to

refuse medical treatment.

Typical Questions Answered

What if I’ve already created an EPA?

If it was set up before 1 October 2007, naming someone as your

attorney, it might still be valid. You might already be using it

without having registered it, so someone can act on your behalf

(unlike an LPA, which must be registered before use). This is

fine, until you become unable to make your own financial and

property-related decisions. Once this happens, the EPA must be

registered before your attorney can take any further action on

your behalf. At this point it’s the responsibility of your attorney to

register the EPA with the OPG. An EPA only covers decisions

about your property and financial affairs; an attorney doesn’t

have power under an EPA to make decisions about your health

and welfare. You might want to consider setting up a Personal

Welfare LPA to work alongside the existing EPA.

Typical Questions Answered

What if I no longer have capacity to make an LPA or

EPA?

The Court of Protection may need to become involved. It can decide

whether someone has the mental capacity to make a decision and

make an order relating to the personal welfare or property and financial

affairs of someone who lacks mental capacity. It can also appoint a

deputy to make decisions on behalf of someone who lacks mental

capacity. Someone who wants to make decisions on your behalf can

apply to the court to be appointed as deputy. This is a similar role to

that of attorney. The court will consider whether it is necessary for

ongoing decisions to be made on your behalf, and whether that person

is suitable to be appointed to that role. The court usually does

everything by post rather than holding a hearing. If you have an existing

EPA, the

attorney may apply to act as a deputy in certain circumstances. You

can’t choose your deputy and the process of appointing one can be

lengthy and costly. It’s much better to have an LPA in place.

Living Wills

• A Living Will lets you indicate what type of

treatment you want, or refuse some types of

medical treatment in certain situations if you lack

capacity to make or communicate your decisions

at the time.

• The term ‘living will’ doesn’t have a legal

meaning but usually refers to either an Advance

Decision or an Advance Statement.

Advance Decisions and Statements

• Advance Decision covers the types of treatment a

person does not want. It must be made by someone who

has the mental capacity to make it and communicate it.

Although the decision doesn’t have to be in writing, it is

more likely your wishes will be upheld if it is. It’s legally

binding, meaning it must be respected by the person

providing your treatment.

• Advance Statement covers any decision about how you

would like to be treated, including non-medical matters

such as your food preferences, religious or other beliefs,

and

even whether you would prefer a bath or shower. It

isn’t legally binding but should be taken into account

when deciding what’s best for you.

How Much Does It Cost?

Single Person Financial/Property OR

Health/Welfare

£500 plus VAT

Single Person Financial/Property AND

Health/Welfare

£750 plus VAT

Couple Financial/Property OR Health/Welfare

£750 plus VAT

Couple Financial/Property AND Health/Welfare

£1400 plus VAT

Court of Protection Registration Charge of

£110 per LPA applies

Thank you! For more details contact me on 0208 979 1131