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The Importance of
an LPA

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IN THIS BLOG

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 an illness and cannot make your own decisions (you ‘lack mental capacity’). 

Source: www.gov.uk/power-of-attorney 

The Covid-19 Pandemic has had an immeasurable impact on the lives of millions of people. For most of us, it’s been nine months since we saw the people we love, shopped without a second thought or did the things we love doing. Most of us are doing our best to navigate a situation that we’re unsure of, with no road map to guide us. Understandably, stress, grief and despair are shared feelings throughout the population. These feelings will in some cases lead to decisions and behaviours that would, in our normal routines, appear out of character.  

Last week’s BBC news story demonstrated the impact that prolonged desperation and uncertainty can have. Ylenia Angeli, 73, made headlines last week when the story broke that “she took “drastic action” due to a lack of face-to-face contact during the pandemic.”. 

Having not seen her mother, 97, who suffers from dementia for nine months, she took her mother from the Care Home back to her own home to care for her herself. Ms Angeli’s daughter, Leandra Ashton explained that when they got to the home, things escalated and that their actions were a result of high emotions.  

This story raises numerous questions around the mental health implications of the Pandemic’s social distancing regulations, especially for those who are the most vulnerable. In the final years of life, anyone would want to be with their loved ones and equally, as family, you want to see that your family are surrounded by love and family in their final years. However, without an LPA, this hope can diminish very quickly.  

What would an LPA have changed?  

There are two types of LPA: 

Health and Welfare LPA 

  • your daily routine, for example washing, dressing, eating 
  • medical care 
  • moving into a care home 
  • life-sustaining treatment 
  • It can only be used when you’re unable to make your own decisions 

Property and Financial Affairs LPA 

  • 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 

A Health and Welfare LPA, with Ms Angeli being named the attorney, would have allowed Ms Angeli to make an executive decision on her mother’s behalf about her medical care. It would have been Ms Angeli’s decision to remove her mother from the care home and to undertake the role of carer for her.  

Why wasn’t she able to do this?  

Because no LPA had been made for her mother, much less with Ms Angeli being the attorney, to remove her mother from care would have been considered a form of kidnapping. Although this particular story is extreme, this issue of who a decision maker is once that person no longer has mental capacity,  is a highly disputed one and can cause rifts in families and other relationships.  

Why wasn’t an LPA made before or as soon as her mother was diagnosed with Dementia? 

This question leads far beyond just the legalities. There can be many reasons why someone doesn’t create an LPA; lack of knowledge, people are unaware of an LPA or a need for one, and by the time that an LPA is needed, it’s increasingly difficult to gain one. Additionally, once a person loses their mental capacity, it is usually not possible to create an LPA. 

How do you make an LPA? 

To make an LPA, you must be over 18 and have mental capacity to make your LPA. ‘Mental capacity’ is defined as having the ability to make your own decisions at the time of making the LPA. The decision of whether or not a person has mental capacity maycan be assessed by a doctor. Someone lacking capacity – because of an illness or disability such as a mental health problem, dementia or a learning disability – cannot do one or more of the following four things: 

  • Understand information given to them about a particular decision 
  • Retain that information long enough to be able to make the decision 
  • Weigh up the information available to make the decision 
  • Communicate their decision. 

To make an LPA, you’ll need to 

  1. Choose your attorneys (who will act for you)
    When choosing an attorney you’ll need to think very carefully about the person that you appoint. How well do they look after their own affairs, would they be willing to be made an attorney, do you trust them to make decisions in your best interest?  
  1. Fill in the forms appointing them as attorney 
  1. Register your LPA with the Office of the Public Guardian. Bare in mind that this part of the process can take up to 10 weeks.  

Whilst you can make an LPA yourself, it’s wise to hire a solicitor, especially in cases of limited capacity, to ensure that the process is as frictionless as possible.  

When choosing a solicitor to begin the process of obtaining an LPA, it’s vital to ensure that you choose one that is sympathetic to both your needs and the needs of your family.