Before any assessment for NHS Continuing Healthcare Funding can take place, your relative will need to provide their consent to the process, which includes sharing their personal information with different organisations involved in their care and, of course, sharing information with us as their advocate.
As long as your relative has the capacity under the Mental Capacity Act 2005, they can provide that consent either verbally, or (preferably) in writing.
However, life is precarious. Your relative’s mental or physical health could change very quickly – whether due to declining health, or as a result of an unpredictable life–changing event, such as a catastrophic stroke, accident or stressful event. Once it is determined that they don’t have mental capacity to make decisions for themselves, you or their advocate will have to apply to
the Court of Protection for an Order in order to gain ‘control’ over their affairs. This can be expensive, and most importantly time-consuming, causing delays whilst critical (perhaps even life-saving) decisions may be put on hold.
If your relative sets up a Lasting Power of Attorney (LPA) whilst they still have mental capacity, then this issue won’t arise.
A Lasting Power of Attorney is a binding document made whilst you are alive, and before you lose mental capacity, that transfers power to another person you have specifically chosen, known as your ‘attorney’, to make your decisions about your own health and welfare, and/or property and financial matters on your behalf – as if you were making those decisions yourself. The LPA protects your health and financial interests at a time when you can’t, and ensures that your appointed representative (attorney) will act in your best interests at all times.
There are two types of LPA:
• Property and Financial Affairs
• Health and Welfare
You can have either or both types of LPA.
Who can make an LPA?
Anybody who is over 18 and understands what they are signing, when making an LPA.
What are the differences between the two types of LPA?
1. An LPA for Property and Financial Affairs:
This type of LPA allows your attorney to deal with your financial affairs. For example: to pay your bills, sell your property or investments and operate your bank accounts. Unless you specify otherwise in your LPA, your attorney can use your LPA even though you still have capacity to make financial decisions yourself. If you allow your attorney to make decisions before you have lost mental capacity, it does not mean that they automatically take all financial decisions for you, it just means that they can take these decisions if you allow them to at the time. This can be helpful if you are unwell or on holiday for an extended period of time.
2. An LPA for Health and Welfare:
This type of LPA allows your attorney to make decisions about matters such as your medical treatment, your diet, where you live and how you spend your time. Unlike the LPA for Property and Financial Affairs, your attorney can only use it when you have lost the mental capacity to make decisions yourself.
Your attorney cannot make decisions about life-sustaining treatment unless you specifically allow this in the LPA. Life-sustaining treatment includes ventilation to help with breathing, feeding through a tube and resuscitation.
How do I make an LPA?
An LPA must be made using a specific form. There is a different form for each of the two types of LPA.
The form is simple to complete but before completing it you should make sure that you have thought carefully about the three categories of people who will perform different roles in relation to your LPA:
• Attorneys
• People that will be notified before your LPA is registered
• Certificate providers
You will also need to consider the decisions that you would like the attorney(s) to make on your behalf, including how they will make those decisions and whether there should be any limits on what they can do. More information on each of these is provided below.
If you have not completed the form yourself, you must read everything very carefully before signing the document. It is a legal requirement that everyone signing your LPA must read “Your legal rights and responsibilities” section. This provides you with information about how your attorney(s) can use the LPA.
Once the form has been completed, it must be signed in the right order. You must sign first, then the Certificate Provider and then your attorney(s).
The LPA must be registered before your attorney(s) can use it.
Who can act as my attorney?
Ideally, you should only appoint people that you can trust to act as your attorney. You should consider the following categories of people when deciding who to appoint:
• Family members
• Friends
• Professional advisors such as your solicitor or accountant
You should also consider practical issues, such as whether it would be better to have an attorney who is geographically close to you. You should also consider the time, skills and expertise that each attorney has in relation to what they may need to do. If you choose to appoint a professional attorney you will need to pay them for their services but you can also pay other attorneys if you wish.
Can I have more than one attorney?
It is possible to appoint more than one person to act as your attorney (usually up to 4). You can also appoint replacement attorneys. This is useful as an insurance policy in case one of your attorneys cannot act. You can appoint more than one attorney in the following ways:
You can appoint more than one attorney in the following ways:
• Jointly – If you appoint attorneys to make decisions jointly, then they can only act together and must agree unanimously on every decision, however minor or important. This may prove inconvenient, particularly for day-to-day decisions. Your LPA will be terminated if one of the attorneys can no longer act unless you have appointed a replacement attorney(s).
• Jointly and severally – If you appoint attorneys to make decisions jointly and severally, they may act either together or independently. This provides more flexibility than appointing attorneys to act jointly, and means that the remaining attorney(s) can continue to act even if one of them becomes incapable of doing so. The downside of this flexibility is that one attorney may act in a way that the other attorney(s) would not endorse. Arguably, however, you should not appoint an attorney to act at all if you don’t
trust that person to act alone.
• Jointly when making some decisions and jointly and severally when making other decisions – This option may provide a compromise between allowing sufficient flexibility for attorneys to act independently in relation to day-to-day matters, and jointly in relation to more important decisions. You will need to decide which decisions the attorneys have to take jointly.
How can I control what my attorneys can and cannot do?
Restrictions imposed by law
The law limits what your attorneys can do and how they must act. The most important rule is that an attorney is only allowed to act in your best interests. Another important rule for an attorney for financial decisions is that they must keep accounts and submit them to the Office of the Public Guardian on request.
Other rules include:
• Strict limits on the kinds of gifts that an attorney for financial decisions can make on your behalf. For example, they can give birthday, Christmas and wedding presents, but they can’t make gifts for inheritance tax planning, or pay school fees for grandchildren without making an application to court.
• The law against euthanasia and assisted suicide – your attorney cannot break the law even if you try to allow them to do so in your LPA for health and care decisions.
Instructions from you
You can also place additional restrictions on the authority of your attorney(s) in the LPA, by specifying instructions that the attorney must follow in section 7 of the LPA form.
Common instructions in an LPA for Property and Financial Affairs include:
• Requiring your attorney to submit annual accounts to a person of your choice.
• Allowing your attorneys to appoint an investment manager to make decisions about your investments.
Common instructions in an LPA for Health and Welfare include:
• Specifying that you would like your attorney to ensure that you have a particular diet, for example, a vegetarian diet.
• Allowing your attorney to agree to residential care only if your doctor confirms that you are unable to live independently.
Preferences
You can provide your attorney with advice in your LPA about how you would like them to manage your affairs. This indicates your preferences, rather than something which your attorney must do. For example, you might say that you would prefer to be cared for in your own home and must not be put into a care home.
Who checks that my attorney(s) are acting properly?
You shouldn’t appoint anyone that you don’t trust to act as your attorney! The Office of the Public Guardian oversees attorneys and deals with any complaints that arise about the way they exercise their powers.
People to notify
When making your LPA, you have the option to nominate up to 5 people to be notified when you (or your attorney) apply to
register the LPA at the Office of the Public Guardian. Any people that you specify should be people who are involved in your life and who know you well. The notification acts as a safeguard by allowing them to raise any concerns that they may have at the point of registration.
Certificate Providers
A Certificate Provider is an impartial person who is qualified to act in one of two ways:
• They are a professional (for example, a GP or your solicitor).
• They have known you for at least two years.
A Certificate Provider must be independent. For example, it is not possible for any of your attorneys, a member of your family or a member of an attorney’s family to act in this capacity. The LPA form contains a full list of those who cannot act as a Certificate Provider.
When completing and signing the form, the Certificate Provider will be certifying that:
• You understand the meaning of the LPA
• You have not been put under pressure to make the LPA
• There has been no fraud involved in making the LPA (ie no dishonesty or scam involved)
• There is no other reason for concern.
Again, the certificate is a safeguard for you because it is confirmation from a qualified third party that you understand what you are signing and that you have decided to make it yourself, without pressure from others.
Registration
You or your attorney can register your LPA with the Office of the Public Guardian (OPG) at any time. However, your attorney can only use your LPA to make decisions on your behalf after it has been registered. You will need to decide whether you want your LPA to be registered immediately.
If you wish to register your LPA immediately, you or your attorney will need to complete sections 12 to 15 of the LPA and give notice to any ‘people to be notified’ using form LP3. You will also need to pay the OPG registration fee. If the LPA will not be registered immediately, these sections of the LPA form should be left blank until you are ready to register.
Advantages of immediate registration
The advantages are that:
• The Office of the Public Guardian checks the LPA so any problems will be found immediately. If the LPA is not registered until you have lost capacity, you won’t be able to rectify any errors and the LPA may be invalid – so your attorney(s) will not be able to use it.
• The LPA is ready to use if it is needed in the future. As the registration process can take eight to ten weeks, delaying registration until you lose mental capacity can cause an inconvenient delay when the LPA is required.
Disadvantages of immediate registration
The disadvantages are that:
• The registration fee per LPA has to be paid straight away.
• Over time, you may decide that you want to revoke your LPA and make a new one. If you have already registered your LPA, you will need to pay a second registration fee to register the new LPA.
How the LPA is used after registration
Your attorney(s) can use a registered LPA for property and financial decisions either before you lose mental capacity (with your agreement) or afterwards. Your attorney(s) can only use a registered LPA for health and welfare after you have lost mental capacity.
When your attorney(s) start using the LPA, they may need to provide evidence of their authority to act for you to banks, utility companies, the Local Authority, your doctor, care homes and other third parties, etc. The requirements of each individual or organisation will vary. For example, some may need to see the original registered LPA, while others may only want a photocopy. Your attorney(s) should avoid sending the original registered LPA by post to a third party and offer to supply an office or certified copy instead. Your attorney can get office copies from the Office of the Public Guardian. Alternatively, a solicitor or accountant can certify a copy of the LPA, confirming that it is a true copy of the original registered LPA.
How Farley Dwek can help you
As a firm of Solicitors, we work in collaboration with a trusted and experienced Private Client team of experts who have many years of experience setting up LPAs based on the individual’s circumstances.
We often recommend that make your LPAs at the same time as setting up Trusts and Wills, as we should already be familiar with your personal circumstances. As solicitors, we can also act as Professional Trustees within the LPA.
We offer a fixed cost LPA service which is competitively priced. For more information, get in touch below.
Last Power Of Attorney Costs
| Either Health or Financial | £450 plus VAT |
| Both Health and Financial | £700 plus VAT |
| Both Types for a Couple | £900 plus VAT |
| Registration Fee (per document) | £82 |
Will Writing Service
| Simple Single Will | From £175 plus VAT |
| Simple Couple Mirror Wills | From £350 plus VAT |
| Does not include trusts or asset protection | |
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