LPAs are crucially important documents which, like Wills, everyone should consider putting in place. They have become increasingly popular since their introduction in 2007.
It is often thought that LPAs are 'for the elderly' or ‘only needed if you have lost mental capacity’. However, they can, in fact, be helpful in a wide range of circumstances, not only if one has lost mental capacity and, in any event, it is important to think about LPAs before the point of loss of capacity.
There are two types of LPA - property and financial affairs and health and welfare. Broadly speaking, both types enable the donor to appoint a person or people to act on his or her behalf should he or she lose the mental capacity to make decisions for him or herself.
There are statutory safeguards and limitations in place regarding how attorneys must act, a key principle of which is that they must act in the donor’s best interests, and there are legal consequences for them if they deliberately act inappropriately.
The property and financial affairs LPA can be drafted so that it can be used by attorneys whilst the donor still has mental capacity (but in that case only under the donor’s direction). This can be particularly helpful for those who may be out of the country for a period of time or for those physically unable to get out and about.
The health and welfare LPA can be drafted so that it covers life sustaining treatment decisions or so that it is limited to more day-to-day decisions.
It is also possible to put in place an Advanced Decision (sometimes called a living Will) as well as or instead of a health and welfare LPA. Advanced Decisions are instruments by which the donor can refuse certain medical treatments in certain circumstances in the future, should he or she no longer have the mental capacity to make those decisions at that time. This can include life sustaining treatment.
It is possible to put in place both an Advanced Decision and a health and welfare LPA. However, if this is to be the case, it is, of course, important that they do not contradict each other. The order in which the documents are put in place is important.
Certain formalities must be met when preparing LPAs and Advanced Decisions to ensure they are valid and LPAs must be registered with the Office of the Public Guardian before they can be used.
If someone were to lose mental capacity without LPAs in place, it will no longer be possible to put LPAs in place and no-one would automatically have the legal authority to make these types of decisions on his or her behalf – not even a spouse. This could cause unexpected problems at what would already be a very difficult time.
If LPAs are not in place and mental capacity is lost then someone would need to make an application to the Court to be appointed as a Deputy. This is a very lengthy and costly process and leaves the mentally incapacitated person with no control over who makes that application and so, ultimately, no control over who is appointed to deal with their affairs.
We have seen a rise in the number of people preparing their own LPA documents. As with 'DIY' Wills, there are a number of issues which can arise if proper advice is not taken before the documents are put in place.
In particular, care needs to be taken in respect of how the attorneys are appointed, when they can act and any guidance the donor wishes to give to the attorneys.