Understanding the Different Types of LPA

Key Takeaways

• In the UK, there are two main types of Lasting Power of Attorney (LPA): Health and Welfare LPA and Property and Financial Affairs LPA.
• Health and Welfare LPA allows an appointed person to make decisions about medical care, daily routines, and life-sustaining treatment when you’re unable to.
• Property and Financial Affairs LPA enables someone to manage your financial matters, like paying bills or selling property, even if you still have mental capacity.
• To create an LPA, you must be at least 18 years old and have mental capacity at the time of making the LPA.
• Setting up an LPA involves choosing an attorney, filling out forms, and registering the LPA with the Office of the Public Guardian.

Overview of LPAs in the UK

Most people don’t like to think about a future where they might not be able to make their own decisions. However, planning for this scenario can save a lot of stress and heartache later on. That’s where a Lasting Power of Attorney (LPA) comes in. An LPA is a legal document that lets you appoint someone you trust to make decisions on your behalf if you become unable to do so. In the UK, there are two main types of LPAs, each serving a different purpose.

Understanding the different types of LPAs and how they work is crucial for anyone looking to secure their future. Besides that, having an LPA in place ensures that your wishes are respected and that someone you trust is in charge of your affairs. Let’s delve into the purpose and importance of LPAs, and why they are a vital part of planning for the future.

Purpose and Importance of LPAs

The primary purpose of an LPA is to ensure that your personal and financial affairs are managed according to your wishes, even if you lose the ability to make decisions yourself. This can happen due to various reasons, such as an accident, illness, or simply old age. An LPA gives you peace of mind, knowing that someone you trust will make decisions on your behalf.

Moreover, LPAs are essential because they prevent unnecessary legal battles and confusion among family members. Without an LPA, your loved ones might need to go through a lengthy and expensive court process to gain the authority to manage your affairs. Therefore, setting up an LPA is not just about planning for the worst; it’s about ensuring your loved ones are not burdened during difficult times.

Eligibility Criteria to Create an LPA

Creating an LPA is a straightforward process, but there are certain criteria you must meet. Firstly, you need to be at least 18 years old. Secondly, and most importantly, you must have mental capacity when making the LPA. This means you should be able to understand the implications of the LPA and the decisions your attorney will make on your behalf.

It’s worth noting that you don’t need to be a UK resident or a British citizen to make an LPA. This flexibility ensures that more people can secure their future, regardless of their residency status. However, the process of setting up an LPA involves a few key steps, which we’ll cover in detail later on.

Key Differences between LPAs and Other Power of Attorney Types

While LPAs are a popular choice for long-term planning, it’s important to understand how they differ from other types of power of attorney. An Ordinary Power of Attorney (OPA), for instance, is another common type. However, unlike an LPA, an OPA is only valid while you have mental capacity. It’s typically used for short-term arrangements, like when you’re abroad for an extended period.

In contrast, LPAs are designed to continue even if you lose mental capacity, making them more suitable for long-term planning. Moreover, LPAs must be registered with the Office of the Public Guardian before they can be used, whereas OPAs do not require registration. This added layer of oversight ensures that LPAs are used responsibly and in the donor’s best interest.

Feature	Lasting Power of Attorney (LPA)	Ordinary Power of Attorney (OPA)	Enduring Power of Attorney (EPA)
Types	Two types: Property and Financial Affairs, Health and Welfare	Typically for financial matters only	Primarily for financial matters
Mental Capacity	Can be used when donor loses mental capacity	Only valid while donor has mental capacity	Can continue if donor loses capacity, but no new EPAs can be made since 2007
Registration	Must be registered with Office of the Public Guardian	No registration required	Must be registered when donor loses capacity
Duration	Lasting, continues if donor loses capacity	Temporary, often for specific situations	Lasting, but replaced by LPAs in 2007
Health Decisions	Health and Welfare LPA covers medical and care decisions	Does not cover health decisions	Does not cover health decisions
Creation	Can only be created while donor has mental capacity	Can be created and used while donor has capacity	No longer available for creation (replaced by LPAs)

Types of LPAs Available

• Health and Welfare LPA
• Property and Financial Affairs LPA

Now that we have a clearer understanding of what LPAs are, let’s explore the two main types available in the UK. Each type serves a distinct purpose, and you can choose to set up one or both, depending on your needs and preferences.

Health and Welfare LPA

A Health and Welfare LPA gives your appointed attorney the authority to make decisions about your personal health and welfare. This includes decisions about your daily routine, such as what you eat and how you dress, as well as more critical decisions about medical treatment and life-sustaining interventions.

One of the key features of a Health and Welfare LPA is that it can only be used when you lack the mental capacity to make decisions yourself. This ensures that your autonomy is respected for as long as possible. Most importantly, it allows your loved ones to make decisions in line with your preferences and values, reducing the emotional burden during difficult times.

Key Decisions Covered

Under a Health and Welfare LPA, your attorney can make a wide range of decisions, including:

• Medical care and treatment options
• Where you live, such as moving into a care home
• Your daily routine, including activities and social interactions
• Decisions about life-sustaining treatment, if you choose to grant this authority

It’s essential to discuss your wishes with your attorney before setting up the LPA. This ensures they are fully aware of your preferences and can act in your best interest when the time comes.

Key Decisions Covered

When you set up a Health and Welfare LPA, it’s vital to know the specific decisions your attorney can make on your behalf. This type of LPA covers a broad spectrum of personal and medical decisions. For instance, your attorney can decide where you live if you’re unable to make that decision yourself. This might include choices about moving into a care home or receiving care at home.

Besides housing, your attorney can also make decisions about your medical care. This includes consenting to or refusing medical treatments based on your preferences. If you’ve discussed your wishes regarding life-sustaining treatments, your attorney can make those tough decisions, too. Therefore, it’s crucial to have open conversations with your attorney to ensure they understand your values and preferences.

Steps to Create a Lasting Power of Attorney

Creating a Lasting Power of Attorney is a structured process that involves several key steps. These steps ensure that your LPA is legally valid and aligns with your intentions. Here’s a clear guide to help you through the process.

First, decide which type of LPA you need. You can choose a Health and Welfare LPA, a Property and Financial Affairs LPA, or both. Once you’ve made this decision, it’s time to select your attorney(s). Choose someone you trust, as they’ll be making significant decisions on your behalf.

Choosing Your Attorney(s)

Choosing the right attorney is perhaps the most critical step in creating an LPA. Your attorney will have the authority to make important decisions, so trust and reliability are paramount. Consider someone who knows you well and understands your values and preferences.

It’s also wise to appoint more than one attorney. This way, they can work together, ensuring that decisions are balanced and in your best interest. You can specify whether they must act jointly (together on all matters) or jointly and severally (together on some matters and independently on others). This flexibility allows you to tailor the LPA to suit your needs.

Filling Out Required Forms

Once you’ve chosen your attorney(s), the next step is to fill out the necessary forms. You can download these forms from the UK government’s website or request paper copies. The forms require detailed information about you, your attorney(s), and any specific instructions you want to include.

While filling out the forms, you can specify any preferences or instructions for your attorney. For example, you might want your attorney to consult with a particular family member before making certain decisions. Make sure to review the forms carefully to ensure everything is correct before proceeding to the next step.

Registration Process and Costs

After completing the forms, you’ll need to register your LPA with the Office of the Public Guardian. This step is crucial because your LPA isn’t valid until it’s registered. The registration process involves submitting the completed forms along with the registration fee.

The cost to register an LPA is £82 per document. However, you might be eligible for a reduction or exemption if you have a low income or receive certain benefits. Once submitted, the registration process typically takes about 8 to 10 weeks. It’s a good idea to register your LPA as soon as possible to avoid any delays in the future.

Limitations and Considerations

While LPAs provide a robust framework for decision-making, there are certain limitations and considerations to keep in mind. Understanding these can help you set realistic expectations and ensure that your LPA functions smoothly. For example, you might want to explore legal advisory services to better navigate the complexities involved.

Firstly, it’s important to remember that an attorney can only make decisions within the scope of the authority granted by the LPA. They must always act in your best interest and consider your known wishes and feelings. Besides that, they are required to follow the principles set out in the Mental Capacity Act 2005.

When Each LPA Type Can Be Used

Each type of LPA has specific conditions under which it can be used. A Health and Welfare LPA, for example, can only be used when you lack the mental capacity to make decisions yourself. This means your attorney cannot make decisions about your health or welfare while you still have the capacity to do so. For more information on managing assets, consider exploring discretionary trusts.

In contrast, a Property and Financial Affairs LPA can be used even if you still have mental capacity, provided you have given your attorney permission to do so. This flexibility allows your attorney to assist with financial matters, such as managing bank accounts or paying bills, when needed.

It’s crucial to understand these distinctions to ensure your LPA is used appropriately and in line with your intentions.

Limitations on Attorneys’ Authority

Attorneys have a duty to act in your best interest and must adhere to the instructions and preferences outlined in your LPA. However, their authority is not limitless. For instance, they cannot make decisions that are outside the scope of the LPA, such as making a will or making decisions after your death.

Furthermore, attorneys must follow the principles of the Mental Capacity Act 2005, which include encouraging you to participate in decisions as much as possible and making decisions that are the least restrictive of your rights and freedoms. Understanding these limitations ensures that your LPA is used responsibly and effectively.

Revoking or Amending an LPA

Sometimes, circumstances change, and you might need to revoke or amend your Lasting Power of Attorney. Whether it’s due to a change in your relationship with your attorney or a shift in your personal circumstances, it’s crucial to know how to make these changes legally. For those considering broader estate planning, understanding the differences between discretionary and testamentary trusts can also be beneficial.

To revoke an LPA, you must have the mental capacity to do so. You can cancel your LPA at any time by completing a ‘deed of revocation’. This document must clearly state your intention to revoke the LPA and be signed and witnessed.

• Complete a ‘deed of revocation’ form.
• Notify your attorney(s) in writing.
• Inform the Office of the Public Guardian to remove the LPA from their register.

If you wish to amend an LPA, such as changing your attorney or updating instructions, you must create a new LPA. Unfortunately, existing LPAs cannot be amended once registered. Therefore, it’s essential to carefully consider your choices when setting up an LPA.

In summary, while revoking or amending an LPA requires some paperwork, it ensures that your LPA remains relevant and effective in representing your current wishes. For more information on managing legal documents, consider exploring the role of legal advisory services.

Conclusion: Empowering Your Future with LPAs

Understanding and setting up a Lasting Power of Attorney in the UK is a proactive step towards securing your future. By appointing someone you trust to make decisions on your behalf, you ensure that your personal and financial affairs are managed according to your wishes, even if you’re unable to do so yourself. Most importantly, an LPA provides peace of mind for both you and your loved ones, knowing that your affairs are in capable hands. As with any legal document, it’s vital to consider your options carefully, communicate your wishes clearly, and seek professional advice if needed. By doing so, you can empower yourself and those around you, safeguarding your future against the uncertainties of life.

Frequently Asked Questions (FAQ)