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6 minute read
Lasting Power of Attorney (LPA or POA) doesn’t necessarily come under the heading of end-of-life planning.
Anyone of any age can lose consciousness through illness or accident, and if they have financial responsibilities and are over 18 they will need someone to speak on their behalf.
A Lasting Power of Attorney (LPA) is a legal document that allows you (the ‘donor’) to appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions (you ‘lack mental capacity’ [see Mental Capacity Act]).
You can choose one or more people to be your attorney, they must be over 18 and if you appoint more than one, you must decide whether they’ll make decisions separately or together (severally or jointly). It makes sense to use people who have shown responsibility over their own affairs and of course those you are sure will act in your best interest. Never assume someone will be happy to act as your Attorney without asking them first, and explaining what it means.
You choose whether your attorneys can act for you as soon as the LPA is registered, or only if you can no longer understand and make decisions.
It is true that if you get a diagnosis of a life limiting illness you are more likely to consider giving someone you trust Power of Attorney. Nevertheless, there is every reason to take one out ‘just in case’. It does take a bit of time and effort, however if you need one and don’t have one, you and your family will be up the proverbial creek with only a very expensive paddle in sight, and you can multiply the time, effort and money spent in the process of applying for one.
Many couples assume that just because they are married, they have an automatic right to manage their spouse’s affairs if, for any reason, they become incapacitated. This is not the case. Without LPA, they will not have access to their spouse’s bank account or be able to pay bills or take other steps to manage their affairs.
Ask TV presenter Kate Garraway. When her husband was hospitalised with long Covid she found herself in financial trouble. The bills and insurance policies were in his name, and she couldn’t speak on his behalf without a Power of Attorney for Finance. On top of all her emotional stress and turmoil Kate had to apply to the Court of Protection to become her husband’s deputy which, as she discovered, is a lengthy, intrusive, and very costly process and to add insult to injury, comes with a yearly fee.
While you are applying for your LPA for finance, consider getting one for health and welfare at the same time. A retired nurse was arrested for removing her 97-year-old mother, who has dementia, from a care home just before the November lockdown. She wanted to nurse her at home. If she’d had POA for Health and Welfare she would have been able to remove her mother without the legal backfire and extremely unwelcome publicity.
Refusal of life sustaining treatment has its own section. You can choose whether your attorneys should make decisions about accepting or refusing medical treatment to keep you alive if you can’t make or understand that decision yourself.
Once the LPAs have been correctly signed and witnessed, they need to be registered with the Office of the Public Guardian. They can be then used immediately, or can sit in your filing cabinet quietly gathering dust – but there just in case. You can download the form from the government website (see below) and fill it out yourself or pay a solicitor (their fees vary), however there is an £82 charge to register an LPA and it can take several weeks. Some people may be entitled to an exemption to the charge or a reduction depending on their circumstances
Drafting and registering Power of Attorney (PoA) in Scotland differs from England.
In Scotland you need to arrange for your own PoA document to be drafted. You can do this either through a solicitor or you can obtain forms in most stationery shops. You cannot download a form from the website of the Office of the Public Guardian.
There are 3 types of Power of Attorney in Scotland:
Continuing (financial) powers can be used by the attorney immediately after the PoA document has been registered.
If the PoA is only to be used in the event of your incapacity, it must clearly state that the powers are not to be used until this happens. You may wish to add a statement about who should make this decision about your incapacity.
Welfare powers may only be acted upon after the PoA has been registered and when you have lost capacity to make decisions on matters to which the powers apply. (see Mental Capacity Act)
The majority of PoAs registered are a combination of continuing and welfare powers.
Before you go to your solicitor for advice, decide whom you want as your attorney and the powers you wish to give them.
You need to sign your PoA document in the presence of one of the following: a solicitor registered to practice law in Scotland, a practising member of the Faculty of Advocates, or a registered UK medical doctor who holds a licence to practise in Scotland.
Once the LPAs have been correctly signed and witnessed, they need to be registered with the Office of the Public Guardian. For more details: https://www.publicguardian-scotland.gov.uk
