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  • Overview

    One of the most prevalent myths around mentally incapacitated individuals is that a person’s next of kin will be able to take decisions for them on an informal basis.  Legally that is not correct.  For example, if one of the parties to a joint bank account loses mental capacity, depending on the bank, the entire bank account could be frozen; the other party cannot just keep operating that account.

    A Lasting Power of Attorney (LPA) is a formal arrangement, undertaken by deed, whereby one person (the donor) entrusts to another person (the attorney) authority to act in their name and on their behalf.

    The Mental Capacity Act 2005 introduced two types of LPA:

    A Property and Financial Affairs LPA - allows your attorney to deal with your property and finances. This can include selling property, dealing with bank accounts, accessing your financial information and dealing with your tax affairs.  This type of LPA can be used even if you still have the capacity to make decisions, but only with your authority, unless you include a restriction that your attorney is only able to make decisions when you lack mental capacity (which we would not normally recommend).  Should you lose capacity, in the absence of a properly appointed attorney, access to bank accounts and other savings will only be possible on the appointment of a deputy by the Court of Protection.

    A Health and Welfare LPA - allows your attorney to make welfare and health care decisions on your behalf, but only if you no longer have the capacity to make such decisions yourself.  These decisions can include where you should live, decisions regarding medical treatment (including life sustaining treatment) and your day-to-day care.  Your attorney must consider, so far as is practical, your past and present wishes and feelings and, in particular, any relevant written statement made by you when you had capacity.  Preferences can be included in the LPA itself, or in a side letter, and these can include, for example, your views on medical treatment if end of life is near, areas you prefer to live in, your preferences for regular exercise, and, if you are a couple who both require residential or nursing care, whether you would wish to be placed in the same home together and permitted to share a room if possible.

    Both types of LPA must be registered with the Office of the Public Guardian (OPG) before they may be used and this process is currently taking the OPG around 5 months to complete.

    We have looked after the affairs of our clients for generations and frequently act as attorneys and deputies for them.  We have a great deal of experience in this area of practice and if you require specific professional advice, please discuss with your usual contact in the firm or email the author at una.angus@ts-p.co.uk

  • Related Services

    Lasting Powers of Attorney (LPA)

    Lasting Powers of Attorney offer security and peace of mind for you and your family.

Una Angus

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Jargon Buster