Hope you're all enjoying the good weather and building up on your tans.
This month I would like to talk about Lasting Power of Attorney, Enduring Power of Attorney and Appointees for people with dementia.
The first document that I would like to address is Lasting Power of Attorney.
A Lasting Power of Attorney (LPA) is a legal document that lets you (the donor) 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 illness and can't make your own decisions (you lack mental capacity).
You must be 18 or over and have mental capacity (the ability to make your own decisions) when you make your LPA.
You don't need to live in the UK or be a British citizen.
There are 2 types of LPA:
1. Health and Welfare
2. Property and Financial Affairs
You can choose to do one of these or both.
How to make a power of attorney?
- Choose your attorney (you can have more than one)
- Fill in the forms to appoint them as attorney
- Register your LPA with the Office of the Public Guardian
You can cancel your LPA if you no longer need it or wish to make a new one.
So what is a lasting power of attorney for Health and Welfare?
This LPA gives the attorney the power to make decisions regarding things like
- Daily routine, such as washing, dressing and eating
- Medical care
- Moving into a care home
- Life sustaining treatment
So what is a lasting power of attorney for property and financial affairs?
This LPA give the attorney the power to make decisions about property and money for you, for example,
- Managing a bank or Building Society Account
- Paying bills
- Collecting benefits or a pension.
- Selling your home.
It can be used as soon as it's registered, with your permission.
Help deciding if you should make a lasting power of attorney
Contact the Office of the Public Guardian or your local SOLLA (Society of Later Life Advisors)advisor. SOLLA can be contacted on www.elevation-im.co.uk and the Office of the Public Guardian can be found at customerservices@publicguardian.gsi.gov.uk
Choosing your attorney.
You can choose more than one person to be your attorney. If you choose more than one attorney, you must decide whether they'll make decisions separately or together.
Who can be your attorney?
Your attorney needs to be 18 or over. They could be
- a relative
- a friend
- a professional, for example a solicitor
- your husband, wife or partner
Your attorney doesn't need to live in the UK or be a British citizen.
When choosing an attorney, think about:
- how well they manage their own affairs, for example their finances
- how well you know them
- if you trust them to make decisions in your best interests
- how happy they will be to make decisions for you
If there's more than one attorney
If there's more than one attorney, you must decide if they'll make decisions:
- separately or together - sometimes called jointly or severally - which means attorneys can make decisions on their own or with other attorneys
- together - sometimes called jointly - which means that all the attorneys have to agree on the decision
Attorneys who are appointed jointly must all agree or they can't make the decision.
Replacement Attorneys
When you make your LPA, you can nominate other people to replace your attorney or attorneys if at some point they can't act on your behalf anymore.
Make a lasting power of attorney
You can make an LPA online or using paper forms.
Either way, you need to get other people to sign the forms, including witnesses and attorneys.
You can get someone else to use the online service or fill in the paper forms for you, for example a family member, friend or solicitor.
You must register your LPA or your attorney won't be able to make decisions for you.
Make an LPA online
Create an account to start your LPA.
You can:
- get help and guidance at each step
- save your forms and then complete them later
- review your answers and correct any mistakes
Use the paper forms
Download the forms and print them out. These can be found at https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney
Signing the forms
You need to sign the forms before you send them off. They also need to be signed by :
- witnesses
- attorneys
- a certificate provider, who confirms you're making the LPA by choice and you understand what you're doing.
Witness and certificate providers must be 18 or over.
Attorneys can witness each other sign but they can't:
- witness you sign
- sign as the certificate provider
When you've made your LPA you need to register it with Office of the Public Guardian (OPG).
If you made your LPA online, you may have registered at the same time. It's registered when OPG has stamped it with VALIDATED-OPG.
It takes between 8-10 weeks to register an LPA if there are no mistakes in the application.
You can apply to register your LPA yourself if you still can make your decisions.
Your attorney can register it for you. You'll be told if they do and can object to the registration.
Notify people
Before you register, send a form (LP3) to all the people to notify (also called people to be told) you listed in the LPA.
They'll have 3 weeks to raise any concerns with OPG.
If you're using the online service to make and register an LPA, it will create and fill in the LP3 forms for you.
How to register
Apply to register as soon as you've sent forms to notify people.
The way you register depends on the way you made your LPA:
- use the online service, if that's what you used to make your LPA
- fill in section 12-15 of your form if you made your LPA using paper forms LP1F or LP1H.
Office of the Public Guardian,
PO Box 16185
Birmingham
B2 2WH
Make sure you include the original LPA form and the fee.
You can send a certified copy if you don't have the original form. Write a covering letter explaining why you no longer have the original.
If you made your LPA with older paper form
You can register by filling in form LP2 if you made your LPA:
- on forms LPA114 or LPA1147 before January1st 2016
- on forms LP PA or LP PW before 1st April 2011
How much it costs
It costs £82 to register an LPA unless you get a reduction or exemption.
This means it costs £164 to register both a property and financial affairs and a health and welfare LPA.
You can pay by:
- credit or debit card - OPG will contact you to process the payment
- cheque
Depending on the type of mistake, OPG may let you correct it and apply again within 3 months for £41
Get a reduction or exemption
You can apply for a reduction if you earn less than £12,000. You may be able to get an exemption if you are on certain benefits such as Income Support.
Certify a copy of a LPA
You can confirm that your LPA is genuine by certifying it if you're still able to make your own decisions.
You an your attorney can use a certified copy to register your LPA if you don't have the original form.
Your attorney can use the certified copy to prove they have permission to make decisions on your behalf, for example to manage your bank account.
How to certify a copy
Write the following text on the bottom of every page of the copy:
"I certify this is a true and complete copy of the corresponding page of the original lasting power of attorney".
On the final page of the copy you must also write:
"I certify that this a true and complete copy of the lasting power of attorney"
Other ways to certify a copy
Copies of your LPA can also be certified by :
- a solicitor
- a person authorised to carry out notarial activities
You can make changes to your LPA even if it's been registered, as long as you still have mental capacity to make your decisions.
If you want to remove one of your attorneys
You will still need to send the OPG a written statement called a partial deed of revocation.
If you want to add another attorney, you need to end your LPA and make a new one.
Use the following wording. Replace the words in the square brackets with the relevant details:
Partial deed of revocation
This partial deed of revocation is made by [donor's name] of [donor's address].
1: I granted a lasting power of attorney for property and financial affairs/health and welfare [delete as appropriate] on [date donor signed the lasting power of attorney] appointing [name of first attorney] of [address of first attorney] and [name of second attorney] of [address of second attorney] to act as my attorney(s).
2. I hereby revoke [attorney's name that you are revoking] ONLY from the lasting power of attorney and the authority granted to him/her.
Signed and delivered as a deed [donor's signature]
Date signed [date]
Witnessed by [signature of witness]
Full name of witness [name of witness]
Address of witness [address of witness]
Where to send a partial deed of revocation
Send the partial revocation to the OPG.
If your attorney's details change
You must write to OPG if one of your attorneys has changed their :
- name - by marriage or deed poll
- address
Don't make changes to your LPA document itself; as it may become invalid. You must contact OPG to make changes to your LPA.
If one of your attorneys dies
You must tell OPG and send them :
- a copy of their death certificate
- the original LPA
- all certified copies of the LPA
- a return address where your documents can be sent back to
You can end your LPA yourself - if you have mental capacity to make that decision.
You need to send the OPG both:
- the original LPA
- a written statement called a deed of revocation
Deed of revocation
This deed of revocation is made by [your name] of [your address].
1. I granted a lasting power of attorney for property and financial affairs/health and welfare (delete as appropriate) on [date you signed the lasting power of attorney] appointing [name of first attorney] of [address of first attorney] and [name of second attorney] of [address of second attorney] to act as my attorney(s).
2. I revoke the lasting power of attorney and the authority granted by it.
Signed and delivered as a deed [your signature]
Date signed [date]
Witnessed by [signature of witness]
Full name of witness [name of witness]
Address of witness [address of witness]
You must be able to make your decisions when you end your LPA
You can also complain if you have concerns about your attorney, for example if they're not carrying out their responsibilities properly.
Other ways a LPA can end
Your LPA will end if your attorney:
- loses the ability to make decisions - loses mental capacity
- divorces you or ends your civil partnership if they're your husband, wife or partner.
- becomes bankrupt or they're subject to a Debt Relief Order (DRO) - if they're a property and financial affairs attorney.
- is removed by the Court of Protection
- dies
Your LPA will end if your attorney dies and you have no replacement attorneys. You must tell OPG and send them:
- a copy of their death certificate
- the original LPA
- all certified copies of the LPA
- a return address where your documents can be sent to
- there are other attorneys who can act jointly and severally -but not if they are only allowed to act jointly
- there are replacement attorneys
Your LPA will end automatically when you die. Your affairs will be looked after by your executors or personal representatives from that point, not your attorney.
Mental Capacity Act 2005
It would usually be a good idea as the attorney to make yourself familiar with The Mental Capacity Act. 2005. A link can be found here http://www.legislation.gov.uk/ukpga/2005/9/contents
An attorney's responsibilities
You can make decisions on someone's behalf if the appoint you as a LPA.
The person who appoints you is called the donor. You're their attorney.
You don't need any legal experience to act as someone's attorney.
The types of decisions you make depend on whether you're a :
- property and financial attorney
- health and welfare attorney
Check what you need to do before you're allowed to start making decisions.
After you start you must :
- follow any instructions the donor included in the LPA
- consider any preferences the donor included in the LPA
- help the donor make their own decisions as much as they can
- make any decisions in the donor's best interests (see MCA 2005)
- respect their human and civil rights
You must make the decision yourself - you can't ask someone to make them for you.
You can get help making difficult decisions. Your decisions can be checked.
If you're not the only attorney
Check the LPA. It will tell you if you can make decisions:
- jointly - this means that all the attorneys must agree
- Severally - this means you can make decisions jointly or on your own
Property and financial affairs attorney
As a property and financial affairs attorney you will make (or help the donor make) decisions about things like:
- money, tax and bills
- bank and building society accounts
- property and investments
- pensions and benefits
Discuss decisions that affect the donor's living arrangements, medical care or daily routine with their health and welfare attorney, if they have one.
Example
If you decide to sell the donor's home, discuss where the donor will live with their health and welfare attorney.
Looking after money and property
You must keep the donor's finances separate from your own, unless you've already got something in both your names like a joint bank account or you own a home together.
Managing bank accounts
Before you can manage the donor's account, you must show the bank the original LPA or a copy of it signed by the donor, a solicitor or notary.
You'll also need to give proof of:
- your name
- your address
- the donor's name and address if they're not the same as on the bank account
Spending money on gifts or donations
Unless the LPA states otherwise, you can spend money on :
- gifts to a donor's friend, family member or acquaintance on occasions when you would normally give gifts (such as birthdays or anniversaries)
- donations to a charity that the donor wouldn't object to, for example a charity that they've donated to before.
- paying someone's school or university fees
- letting someone live in the donor's property without paying market rent (anything they pay below market rent counts as a gift)
- interest free loans
Buying and selling property
You'll need to get legal advice if :
- the sale is below the market value
- you want to buy the property yourself
- you're giving it to someone else
You can apply for a statutory will if the donor wants to make a will but can't do it themselves.
You can't change a donor's will.
You can be ordered to repay the donor's money if you misuse it or make decisions to benefit yourself.
Health and Welfare Attorneys
As a health and welfare attorney you will make decisions (or help the donor make decisions) about things like :
- daily routine such as washing, dressing and eating.
- medical care
- where the donor lives
- new clothes or hairdressing
- decorating their home or room in a care home
- paying for extra support so that the donor can go out more, for example to visit friends and relatives or go on holiday.
Refusing or consenting to treatment
Check the LPA for information for refusing or consenting to treatment.
You'll need to :
- show the LPA to care staff
- sign medical consent forms
- make decisions in the donor's best interests.
Living wills (aware decisions)
This is a legal statement from the donor about which medical treatments they don't want. You'll need to give this to care staff along with the LPA.
Apply for a one off decision
You may need to apply to the Court of Protection for a one-off decision to make a decision about medical treatment if:
- the living will and LPA give different instructions
- the medical staff or the donor's friends and family disagree about whether the treatment should be given.
You must have a registered LPA before you can start acting as an attorney.
The LPA is registered when the OPG has stamped it with VALIDATED-OPG.
You can prepare before you start by talking to the donor so you can start making decisions in their best interests. For example ask about their plans for their money or how they want to be card for if they become seriously ill.
Starting as a property and financial affairs attorney
The LPA might give you permission to make decisions whilst the donor still has the mental capacity to make their own decisions.
If it doesn't, you can only start making decisions when the donor no longer has mental capacity.
Starting as a health and welfare attorney
You can only start making decisions once the donor no longer has mental capacity.
You must tell people involved in the donor's care when you start. This includes the donor's friends and family, doctor and other healthcare staff , care workers, social workers and other social care staff.
Staff may want to see proof of your identity and either the original LPA or a certified copy.
Taking over as a replacement attorney
Replacement attorneys are listed in the LPA.
You'll be able to start helping the donor make decisions once the attorney you're replacing stops acting. Check the LPA to see if there are other attorneys that you need to make decisions with.
Records and Expenses
Keep a record of:
- important decisions you make and when, for example selling the donor's home or agreeing to medical treatment
- the donor's income, assets and how you spend their money - if you're their finance and property attorney
Don't include small, everyday decisions.
Expenses
You can only claim expenses for things that you do to carry out your role as an attorney, for example:
- hiring a professional to fill out the donor's tax returns
- travel costs
- stationery
- postage
- phone calls
Keep the receipts and invoice the donor for your expenses. The money is paid by whoever is in charge of the donor's funds.
Checks and visits
The OPG and the Court of Protection can check your decisions. They may:
- arrange a visit with you and the donor together, or the donor alone
- contact other people such as the donor's family, bank or care workers
- you've done something the LPA says you can't
- you haven't done something the LPA asked you to do
- you haven't been acting in the donor's best interests
- you misuse the donor's money or use it to benefit yourself
- you do something that goes against their human and civil rights
- the donor isn't being treated well
- the donor made the LPA under pressure or were tricked into it
The LPA ends when the donor dies.
Tell the OPG and send them:
- a copy of the death certificate
- the original LPA
- all certified copies of the LPA
You can stop acting as an attorney before the donor dies- sometimes called disclaiming an attorneyship.
There are also some cases in which the law requires you to stop acting as an attorney.
Any replacement attorneys listed in the LPA will take over as you stop
If there are no other ways then there may be other ways to help the donor make decisions.
If you choose to stop
Fill in and send a notification form to :
- the donor - if the LPA hasn't been registered
- the donor and OPG - if the LPA is registered
- any other attorneys appointed on the LPA
You must stop acting as an attorney if :
- the donor takes you off the LPA - sometimes called revoking an attorney
- you're a property and financial affairs attorney and you become bankrupt or are subject to a DRO
- you lose mental capacity and can't make decisions anymore
- you're married or in a civil partnership with the donor and divorce or annul the donor (unless the LPA states that in this eventuality you can carry on as attorney)
- you're a joint attorney and other attorneys stop acting, unless the LPA states that you can carry on making decisions
 |
| Me and my Mum before LPA |
When my mother was diagnosed with Alzheimer's Disease 7 years ago, we made LPA's for both property and financial affairs and health and welfare.
It took a couple of years, but my mother suddenly became unable to manage her financial affairs and was deemed not to have mental capacity. I took over in this matter with my brother as joint attorney.
The problems we faced were in relating to my mother that were she had been going out and buying things she could not afford and missing payments on her rent, we now had to ensure that there was enough money to cover bills and rent.
This did not go down well and we were accused of all sorts of financial impropriety. This got so bad that the relationship was suffering and myself and my brother became worried about making any decision for her.
 |
| Me and Mum during LPA
Eventually, something had to give, so my brother and I stopped being the attorney for property and financial affairs and got Social Services involved to put an appointee in charge to handle Mum's money. This took the bad feeling that Mum had about us having her money and the relationship became positive once more. We still retain the LPA for health and welfare.
Enduring Power of Attorney
This was the old LPA format that stopped being used from October 1st 2007. It has mainly the same function as an LPA but after speaking to Stuart Emerson at the Society of Late Life Advisors, there appears to be problems circling around the EPA.
The problem seem to be that if the donor had made his/her attorneys on a joint basis and one of the attorneys has either died or been unable to continue as an attorney (loss of capacity, bankruptcy etc.), then the document can not be used as an EPA cannot be amended or altered in any way. Stuart then went on to say.
I remember lot of media
attention in the late summer of 2007 to get the EPA’s done quickly because it
was about to become more complicated and expensive when they changed on October
1st. I have experienced several situations where spouses have
been appointed for each other as EPA’s on a joint basis with a
child/children. This can cause a major problem if a spouse has since died and
the remaining spouse no longer has the capacity to make a new LPA. My key
message is to avoid the cost, time and hassle of having to deal with the Court
of Protection as a Deputy, review existing EPA’s and if things have
changed then make a new LPA. If the EPA is still ok and fit for purpose
then it is also advisable to add the LPA for Health & Welfare. This
is because one of the main faults of the EPA is it only covers property
and finance.
Stuart has also noticed that there is an issue with LPA's. He states
There are several ongoing issues
that I am facing when trying to provide practical advice to the families of
those that I advise. The first of those is going the increased need to also
hold the LPA for Health & Welfare as many organisations (not just financial
ones ) are requesting this before they will discuss anything with family
members. This could be for Social Services/GP surgeries and the Care Needs
assessment or even regarding choice of residential care when the LA are funding
it. The message here is to obtain both Health & Welfare and Property &
Finance Lasting Powers of Attorney so that all angles are covered!!
So there ends this blog. I hope this has been informative and will help you with making decisions about not only the person with dementia's future but your own future as well. Good luck and Godspeed.
Thanks for listening.
|
No comments:
Post a Comment