Whenever you look up LPAs, you’ll see lots of information about their importance and role in ensuring a loved one can make decisions on your behalf about your finances or health and wellbeing.
It’s always worth remembering that your nominated attorneys may never have to make a decision on your behalf. Still, it’s better to have an LPA and never need it than to be in a position where a local authority or medical professional makes decisions about your finances or health.
What does “making decisions on your behalf” mean in practice? And what does being an attorney entail?
Appointing an attorney to act on your behalf
You can appoint anyone over 18 as an attorney, providing they’re not bankrupt or subject to a debt relief order if you’re creating a property and financial affairs LPA.
However, given the potential gravity of the decisions they’ll need to take, it’s best to speak to anyone you want to act as an attorney before writing and registering your LPA. Not everyone will feel comfortable about being an attorney, especially if they may one day have to decide on whether you receive medical treatment or have to claim your pension and other benefits.
Whomever you wish to appoint as your attorney, ensure you provide them with as much detail as possible so they can decide whether they feel able to do it. This approach is better than appointing an attorney who later decides they can’t undertake the role you need them to perform. This scenario could then lead to problems, particularly if you’re no longer capable of appointing an alternative.
It’s also worth noting that you can appoint more than one attorney. So, if your children might find it easier to make decisions about your finances or healthcare collectively, you can speak to them together and appoint them all as attorneys if you wish. In addition, if you appoint multiple attorneys, your LPA can outline whether attorneys can take decisions independently or whether they must only act unanimously.
What legal responsibilities do attorneys have under LPA?
Your LPA will outline the specific responsibilities your attorney or attorneys will have.
However, from a legal perspective, your attorneys will be duty-bound to:
- Act in your best interests and take reasonable care when making decisions or taking actions on your behalf
- Act under the instructions in the LPA
- Help you make decisions when you’re capable of doing so, rather than simply taking complete control of your affairs
The Mental Capacity Act Code of Practice provides further guidance for your attorney or attorneys. It is worth them being aware of its contents as it may also dictate when your LPA comes into force.
When you create your LPA, your nominated attorneys will have to sign a statement acknowledging their understanding of their legal responsibilities. If you’re considering making an LPA, the earlier you can give your preferred attorneys the heads up so they can begin to understand what it entails, the better.
What if my attorneys don’t meet their obligations?
If your attorneys fail to act in your best interests or carry out their duties as laid out in your LPA, they may:
- Be liable to pay you compensation for any losses you suffer due to their conduct
- Face criminal charges if their conduct amounts to ill-treatment or neglect
What authority will my attorney or attorneys have under an LPA?
When you create and register an LPA, you are not giving your attorneys absolute power to make decisions on your behalf across all aspects of your life.
In the first instance, the specific type of LPA you create will dictate how your attorneys can make decisions. The two types of LPA you can create are:
- A property and financial affairs LPA
- A health and welfare LPA
If you want your attorney or attorneys to make specific decisions, you must appoint them under the relevant LPA. An attorney you name on a property and financial affairs LPA cannot make decisions about your healthcare, for example, and vice versa. It is up to you whether you have one or both types of LPA and whether you name the same or different attorneys under these.
You should also keep the following things in mind when creating an LPA.
Writing and registering your LPA
Your attorneys have no authority or legal standing to act on your behalf until you register your LPA with the Office of the Public Guardian (OPG).
It typically takes at least six weeks for an LPA registration to take effect, so the sooner you act, the better. If you write an LPA but lose the capacity to make decisions before registering it with the OPG, your nominated attorneys can apply to register it on your behalf.
As such, the sooner you register your LPA, the better.
LPAs and mental capacity
Your LPA can specify that your attorneys can only make decisions on your behalf if you lack the mental capacity to do so. This condition is the default position with a health and welfare LPA.
Generally, your attorneys will need to seek advice or make decisions about your mental capacity case-by-case.
Instead of deciding you lack the mental capacity to make any decisions, your attorneys may determine you can make some decisions but not others. For example, this might mean you can decide what you want to eat and wear daily but cannot make informed decisions about what medical treatment you’ll receive.
LPAs and life-sustaining medical treatment
You don’t have to give your attorneys the authority to make decisions about life-sustaining medical treatment under a health and welfare LPA. Your attorneys will only have this authority if your LPA explicitly states so.
LPAs and specific restrictions
You can include specific restrictions within your LPA. For example, if you have a property and financial affairs LPA, you can state that your attorneys are not to distribute any gifts from your assets. Doing this can help protect the value of your estate and is worth considering if you’re creating an LPA at the same time as undertaking other estate planning, like writing a will.
If you don’t want your attorneys to make gifts from your assets but want to start thinking about minimising your estate’s Inheritance Tax bill, you may also decide to set up a trust when creating your LPA and writing your will.
Your attorneys can later apply to the Court of Protection for the authority to make gifts and take other actions while your LPA is in effect. Still, it’s better to outline your wishes at the earliest opportunity. This way, your attorneys don’t risk conflict by making decisions your family disagrees with and that you haven’t explicitly outlined yourself.
Discussing your LPA and your wishes with your attorneys
You can discuss your wishes with your nominated attorneys in whatever way you wish. However, it is always best to have your wishes explicitly outlined in your LPA. Having everything in writing can avoid disputes when your attorneys make decisions that follow your wishes but that your loved ones disagree with.
What else do attorneys need to know?
In addition to their legal responsibilities and duties under your LPA, there are several practical issues your attorneys will need to consider when acting on your behalf. Discuss these with your desired attorneys before creating your LPA so they can make any necessary arrangements to help them manage your affairs more effectively.
LPAs and your finances
If you have a property and financial affairs LPA, your attorneys must keep your financial affairs, assets, and possessions separate from their own.
If attorneys don’t know what to do
Your attorneys are responsible for taking decisions on your behalf and cannot delegate decisions where they’re unsure of what to do or don’t want to make a decision.
However, your attorneys are free to take whatever advice they feel they need to make an informed decision in your best interests. For example, they might consult a financial adviser about the best way to manage your pension or seek a second medical opinion about a diagnosis or treatment options.
If your attorneys don’t want to be attorneys
Ideally, you will have spoken to everyone you wish to nominate as an attorney and only name them in your LPA if they’re happy to take on the responsibility.
However, if your attorneys later decide they don’t want to be attorneys, they can contact the OPG detailing their wishes. You may then wish to nominate an alternative depending on your situation. If a sole attorney disclaims their role while an LPA is active, your loved ones will need to apply to the Court of Protection to gain authority to make decisions on your behalf.
You can also write contingencies into your LPA that outline what happens in such a situation.
When you die
Upon your death, an attorney should send your LPA and a copy of your death certificate to the OPG. Authority to make decisions on your behalf ceases immediately upon your death, and your executor or personal representative will instead take responsibility for administering and distributing your estate.
Of course, you may wish for your attorney or attorneys under your LPA to also be the executors in your will, but you will need to outline this in each document.
Ready to create and register your LPA? Contact us now
LawPlus can help you create and register your LPA or make changes to an existing LPA, assuming you have the mental capacity to take such decisions.
Contact us here to discuss your needs and make a start creating your LPA.