Firstly, I must start this by saying I am not a solicitor and I would highly recommend seeking legal advice when considering creating LPAs. However, working for a specialist mental capacity assessors I am in the privileged and insightful position of speaking with many clients that are dealing with legal documentation such as LPAs.
On joining TSF consultants a number of years ago I must admit I didn’t really know what an ‘LPA’ was or why you would have one.
What is an LPA?
An LPA is a lasting power of attorney. In short it is a document that allows you to dictate who is allowed to assist you with your property and financial affairs or health and welfare decisions.
Technically as soon as the document is signed, they are legally allowed to access and involve themselves in all your decisions or those for which you lack capacity, depending on the option you have chosen. It is vital that you choose someone you trust. In practice it is mostly implemented when the time comes that you need assistance with you financial or health decisions. This is often at a time of deteriorating mental health or a deterioration in cognitive functioning due to a condition such as dementia.
Why is an LPA so important?
Working for an organisation that completes mental capacity assessments it is clear to see that many clients, like me, have not thought about creating an LPA. Often, we are approached by the family of a client who has reached a point where they need assistance in their decision making but the family is not allowed as they do not have the legal rights without an LPA or going through a legal process.
Court of Protection
We are often called upon to visit a client to start the process to apply to the Court of Protection. This is a court specifically assigned to protecting vulnerable clients. If in the circumstance that there are no LPAs in place and there is a concern the client lacks mental capacity to continue to make these decisions without assistance, we are asked to complete an assessment. In brief we complete an assessment of mental capacity which is then used to complete a form that allows an application to be sent to the court. The court will then assess the situation and help to assign an appropriate person or people to help the client with their decision making in these areas. This person is called a deputy.
The process is long, taking months to go through court and can be very costly, running into the thousands of pounds. In comparison an LPA application form can be downloaded for the government website, be completed yourself and then sent to be registered for a fee of a few hundred pounds. It is recommended that you seek advice when filling out these forms as errors can cause delays in the process and there are a number of options to choose between.
It seems to me that we should be raising awareness of the importance of LPAs and putting them in place sooner rather than later. It could save us a lot of money, would ensure that we can express our wishes and also save friends and family heartache at an already difficult time.
Can an LPA be created when a person lacks capacity to make some decisions?
If you have a family member that does not have LPAs in place and you are concerned they lack capacity to make financial or health decisions for themselves please contact us. The threshold of understanding for creating an LPA is lower than the threshold for managing property and financial affairs. This means that a person may still be able to create an LPA and avoid an application to the Court of Protection, but it would be advisable to seek the expertise of a mental capacity assessor.
A capacity assessment will inform whether the client has the mental capacity to make an LPA. If the client has capacity, the results of the assessment can also be used if the document is ever contested in the future. Our mental capacity assessors can act as a certificate providers and sign section 10 of the document.
For more information contact the team on 0333 577 7020 or visit https://www.gov.uk/power-of-attorney/make-lasting-power for more information about LPAs. Any reputable solicitors will also be able to provide legal assistance on the matter – see our Partners page for some suggested experienced solicitors.