The simple answer is before it’s too late. Dementia, coma and strokes are the most common reasons why people lose the capacity to make decisions for themselves. Once capacity has been lost, you are no longer deemed able to appoint an attorney. If this happens, no one might have authority to pay your bills, check your income and make crucial decisions about your medical treatment. Ultimately, the Court of Protection has to appoint a Deputy instead. This can take months and cost a great deal more than creating an LPA.
There is a Financial Decisions LPA and a Health and Care LPA. The reason for there being two to cover these separate areas is that whilst most people choose the same Attorneys for both, you do have the option to choose different people if you wish. For example, you might want an accountant to take charge of your money and a relative to look after your care.
If you lose capacity without an LPA, then the situation can arise where no one has the legal authority to make decisions for you. The Court of Protection may need to appoint a Deputy in the short term and often choose the local authority, which can raise the question of conflict of interest. The only route then is for someone to apply to the Court of Protection to be appointed as a Deputy, which takes months and costs thousands not hundreds. Deputies must also pay an annual fee to the Court of Protection and submit an annual report of their actions. They may also have restrictions placed upon them, such as limits of how much they can spend without the Court’s permission.
Home Visit Mirror LPAs*
Certified Copy Service
£15 per LPA
£12 per year
* Mirror LPA – When a couple are seen at the same time and their needs are broadly the same.
Prices include VAT
In addition, there is a fee of £82 to register each LPA charged by the Office of the Public Guardian (OPG).
If a donor is in receipt of certain means tested benefits, or has an income of less than £12,000 per annum, they may be entitled to an exemption or remission of the registration fee. Please call us on 0345 230 0010 for more details.
This is the person that the LPA is created to protect. The Donor needs to be over 18 years old and have the mental capacity to decide on the LPA.
This is the person or persons the Donor appoints to make their decisions for them. Attorney(s) are usually family members or close friends who know you well, that you have found to be trustworthy and reliable. You can also use a professional Attorney such as a solicitor or accountant. A professional will usually charge a fee for acting as an Attorney.
This is an impartial person who is over 18 years old whose function is to confirm that you understand what the LPA is for and that you are making it voluntarily, without any pressure from someone else.
An independent person who is over 18 years old and not one of your Attorneys who has seen you sign the documents.
In addition, you can have:
This is a person or persons who can step in if one or more of your original Attorneys can no longer act for you.
Person to Notify:
A person or persons who are there as a safeguard and will be told when your LPA is about to be registered, if not done so immediately. They should be willing to raise concerns if they think that there was any pressure or fraud involved in making your LPA.
- Follow any instructions the donor included in the LPA
- Consider any preferences the donor included in the LPA
- Help the donor make their own decisions as much as they can
- Make any decisions in the donor’s best interests
- Respect their human and civil rights
In order to decide what is in the Donor’s best interests the Attorney should:
- Look at all relevant factors, including what that the donor would consider if they were making the decision for themselves.
- Allow and encourage the donor to take part in the decision.
- Think about whether mental capacity could be regained in the future and if so could the decision be delayed if it is not urgent.
- Take into account the donor’s past and present wishes, feelings, beliefs and values.
- Consider the views of people who are close to the donor (e.g. family members, friends, carers).
- Avoid discrimination and do not make assumptions about the donor’s best interests simply on the basis of their age, appearance, condition or behaviour.
If a decision is too difficult, then Attorneys should seek advice from a relevant organisation such as the OPG, local social services, or a related charity.
If you’re married or in a civil partnership, you may have assumed that your spouse would automatically be able to deal with your bank account and pensions, and make decisions about your healthcare, if you lose the ability to do so. This is not the case. Without an LPA, they won’t have the authority. Many banks effectively freeze a joint account, preventing new instructions if an account holder loses capacity. They may also restrict the level of payments that can be made without obtaining their approval.
Many people, who contact us do so due to concerns about a family member. Discussing the possibility of losing capacity with them can be hard, but the following suggestions may help:
- Don’t take them by surprise. Let them know in advance what you want to discuss.
- Choose a time and place where you won’t be disturbed or rushed.
- Don’t feel you have to cover everything in one conversation. There are bound to be issues to think about and go back to later.
- Perhaps jot down the main issues to make sure you discuss everything you want to.
- Don’t be surprised if any of you get emotional. Be honest and talk about all your feelings, not just the positive ones.
People can be reluctant to have these conversations – perhaps they don’t want to think about such matters, and they’re worried about saying the wrong things. It might reassure them to say that it would help you to talk. Remember there is no right or wrong way to start these conversations. Choose what’s right for you and your family.
Not necessarily, but you need to act without delay. Dementia is a progressive condition so in the earlier stage’s capacity is unlikely to have been lost. The Mental Health Act 2005 defines capacity as the ability to:
- Understand the information that is relevant to the decision they want to make.
- Retain the information long enough to be able to make the decision.
- Weigh up the information available to make the decision.
- Communicate their decision by any possible means, including talking, using sign language, or through simple muscle movements such as blinking an eye or squeezing a hand.
If you own a business the answer is yes. If you become incapacitated you will need an Attorney(s) to pay suppliers and salaries, maintain bank accounts, loans and overdrafts. Family members, or colleagues will not automatically have the right to do this without the authority bestowed by an LPA. If you are a Sole Trader, or a Sole Director The Financial Decisions could be enough for you, unless you want different people to look after your business and personal affairs. LPA Now can help by creating two Financial LPAs, one for each area of your life. However, if you are in a partnership with several partners you will need to make sure any business LPA does not conflict with the terms of your partnership agreement. Similarly, if you are one of a number of directors, your business LPA has to be consistent with your Articles of Association. LPA Now recommend in the last two cases that you should seek the advice of a solicitor.
LPAs replaced EPAS in 2007. EPAs only dealt with financial matters and are still valid if registered with the OPG. If someone has an EPA, it would be sensible to take out a Health and Care LPA to make sure that they are properly covered for all eventualities.
With the Health and Care LPA, Attorneys can only act once the donor has lost capacity. The Financial Decisions LPA is different in that the Donor can choose whether the Attorneys can act as soon as the LPA is registered, or not until capacity has been lost. Many people choose to have their Attorneys act before capacity is lost so that, as they get older, the Attorneys can deal with large remote organisations on their behalf. This means that they make the decisions, but the Attorneys deal with the hassle of making phone calls or sending emails and letters on their behalf.
LPAs expire on the death of the donor. The basic logic for this is that the LPA is a tool to enable decisions to be made when someone can no longer do so themselves, but once they die, such decision making would also cease at that point.
Each LPA has an official form, provided by the Office of the Public Guardian (OPG), that needs to be completed exactly to their requirements. The forms then need to be registered with the OPG and their fee has to be paid. Finally, the OPG officially stamp each page and post them back. The OPG state that around 15% of the forms they receive are initially rejected because they contain errors, so it is important to get specialist help to avoid delay and further cost. LPA Now can assist you in person, or on the telephone, to create an accurate LPA that does exactly what you want it to do, and then manage the registration process on your behalf.
Once your LPA has been registered by the OPG they stamp it and send it on. At this point you may wish to have more than one copy of your LPA. You might want your Attorney to have a copy, or you could want LPA Now to retain a copy in secure storage, just in case yours gets mislaid or damaged. For a copy to be valid it must be Certified. This means that each page must bear certain wording and be signed and dated by either a solicitor or the donor. Each LPA is 15 pages long and most people have two, so this means 30 signatures. Clearly this isn’t work that a solicitor will be keen to undertake, and they will charge you to do so. As an alternative, LPA Now will, for a modest fee, provide you with as many copies as you need and will stamp each page with the correct wording so that you can sign them yourself. Once you have certified the copy, if you want us to retain one securely for you, just return the document to us and agree to the small annual fee.