Making a Will is one of the most important things you will do in your lifetime. It caters for far more than just who will benefit from your belongings (your estate).
Lasting powers of attorney (LPAs) in England and Wales were created under the Mental Capacity Act 2005 and came into effect on 1 October 2007. The LPA replaced the Enduring Powers of Attorney (EPA) which were narrower in scope.
Their purpose is to meet the needs of those who can see a time ahead when they will not be able, (will lack capacity) to look after their own personal and financial affairs. The LPA allows them to make appropriate arrangements for family members or trusted friends to be authorised to make decisions on their behalf. The LPA system is administered by the Office of the Public Guardian (OPG), an agency of the Ministry of Justice of the United Kingdom. The OPG was set up in 2007 under the Mental Capacity Act 2005 It is headed by the Public Guardian, whose main role is the protection of people who lack mental capacity.
The MCA 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It states who can take decisions on their behalf, in which situations, and how they should do so.
THERE ARE TWO TYPES OF LPA AVAILABLE:
A Property and Affairs Lasting Power of Attorney (LPA) allows you to plan ahead by choosing one or more persons you trust or a professional such as a Trust Corporation (your Attorney's) to make decisions and take appropriate actions on your behalf regarding your property and financial affairs.
Your Attorney or Attorney's can manage your finances and property whilst you still have capacity as well as when you lack capacity. For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income.
This might be for lots of reasons: you might find it difficult to get about or be housebound or may find talking on the telephone difficult, or you might be working or living abroad for long periods of time.
You can decide what power and the extent of the power to give your Attorney(s) when making decisions about any or all of your property and affairs matters. This could include paying your bills, collecting your benefits or selling your house.
This type of LPA does not allow the person(s) you have chosen (your Attorney) to make decisions about your personal welfare. If you want someone to be able to make personal welfare decisions on your behalf you will need to make a personal welfare LPA.
A Personal Welfare Lasting Power of Attorney (LPA) allows you to plan ahead with regard to your personal healthcare and welfare by choosing one or more people to make decisions on your behalf.
These personal welfare decisions can only be taken by somebody else (a close friend or family member) when you lack the ability to make decisions regarding your treatment or other personal matters for yourself; for example if you are unconscious or because of the onset of a condition such as dementia.
The Attorney(s) you appoint to make personal welfare decisions will only be able to use this power once the LPA has been registered and provided that you cannot make the required decision for yourself.
You can decide to give your Attorney the power to make decisions about any or all of your personal welfare matters, including healthcare matters. This could involve some significant decisions, such as:
You may wish your Attorney(s) to have the power to make decisions about ‘life-sustaining treatment', if you do then you have to expressly give your chosen Attorney(s) the power to make such decisions by completing sections 6 and 12 of the LPA form.
You can also give your Attorney(s) the power to make decisions about day-to-day aspects of your personal welfare, such as your diet, your dress, or your daily routine. It is up to you which of these decisions you want to allow your Attorney to make.
Part A – The Donor's Statement
This section is about you, the Donor, you will also list who you want to appoint to make decisions for you in the future, (your Attorney(s)) and how you want them to act on your behalf. When appointing your Attorney(s) you can place restrictions or conditions on the decisions your Attorney(s) can make and you can give them guidance as to how you expect them to act. The LPA cannot be used until it has been registered, you should name up to four people, family members or close friends (named persons) that you wish to be notified that the LPA is being registered with the OPG. You are required to sign this document in the presence of a witness.
Part B – The Certificate Provider's Statement
Only certain people can be certificate providers and details of who can and cannot do so are listed on the form. Your certificate provider will speak with you privately to satisfy themselves that you understand the powers you are giving your Attorney(s) and that there has been no fraud or undue pressure on you to make the LPA. If you have chosen not to notify any person (your named persons) of the fact that the LPA is being registered you will need to have two certificate providers, this is to safeguard you against a fraudulent act.
Part C – The Attorney's Statement
Everyone you choose as an Attorney will need to provide their personal details and confirm that they understand their legal duties should they need to act as your Attorney. This part of the form will need to be signed by each of your Attorneys and their signatures will need to be witnessed. If you are using a professional to prepare your LPA then your adviser will ensure that the Attorney(s) are advised of their duties and that they receive the necessary information.
A will is a legal document where a person, names one or more persons to manage his or her affairs and estate. In “olden” times, a Will referred to property, and a Testament referred to personal property, hence the term now used “Last Will and Testament”.
If someone dies without making a will, they are said to have died “intestate”. If this happens, the law sets out who should deal with the deceased’s affairs and who should inherit their estate (property, personal possessions and money).
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