A Lasting Power of Attorney (LPA) is an essential document when it comes to looking after someone who has lost mental capacity, but if you have the LPA forms and you are an attorney, do you know what your responsibilities are?
The responsibilities of an attorney under an LPA are defined by law in the Mental Capacity Act 2005 and the failure to following these duties appropriately will result in severe punishment.
But before you think Lasting Power of Attorney – what does it mean? It’s worth saying that LPA forms are legal documents that allow you to pass over the power of dealing with your affairs to someone you trust (an attorney or attorneys) if you feel you are no longer able to or suffer an illness/accident that means you can’t.
There are two types of LPA forms:
- Lasting Power of Attorney – Property and Financial Affairs.
- Lasting Power of Attorney – Health and Welfare.
For anyone over the age of 18 it is advisable to have both.
LPA forms – how to get them
If your affairs are relatively simple and you only wish to choose one or two attorneys then you can actually download and complete the LPA forms yourself online.
It doesn’t cost you anything to create the LPA forms but you will need to pay the Office of Public Guardian a fee to register your LPAs for your attorney to be able to use them. You don’t need to do this straight away. Your attorney can do this at the point you lose mental capacity. The main thing is to get the LPA forms set up and signed now so they are always there in case you need them. You can’t set them up once you’ve lost mental capacity.
If you feel your situation is more complex, for example:
- You have a large estate.
- Multiple friends and family that may not get on.
- Unsure on what powers to give.
- Not sure on when you would like the LPA to come into force.
Then it may be worth seeking the expertise of a professional who can guide you through the process.
LPA forms being used by an Attorney
If you are an attorney for someone then you must follow the principles of the Mental Capacity Act:
- You must always assume that the donor (the person giving the power) can make their own decisions unless it has been assessed that they cannot do so.
- You must provide support and help the donor to make their own decision where possible to do so.
- You cannot assume someone lacks mental capacity just because they make an unwise decision.
- You must always make decisions that are in the best interest of the donor and no one else.
- You must determine whether you can actually make the decision or see if there is another less restrictive way of you still being able to maintain the rights of the donor for the desired purpose.
There are other rules to watch out for:
You may not be the only attorney
- Check the LPA forms.
- If there is more than one attorney, what is your remit?
- Do you have to work together and make joint decisions or can you make your own decisions independently of the other attorney.
Follow instructions made by the donor
- The donor may have made express requests regarding their affairs.
- It’s important you follow these to ensure you are acting in the best interests of the donor.
Spending the donor’s money
- You can spend the donors money if it is for their benefit e.g. care fees and living costs.
- You can even make gifts (e.g. birthdays) where you can demonstrate that the donor would normally make the gift.
- But for any other types of gifts you will need to apply to the Court of Protection.
So as you can see, when it comes to handling LPA forms, there is lots to think about and the decision to act as an attorney should not be taken lightly.
If you would like to discuss your responsibilities as an attorney or if you need help arranging your own Lasting Power of Attorney please give us a call to arrange an initial consultation at our expense. We’d be delighted to help.
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