If you have been named as an attorney in a Lasting Power of Attorney for someone close to you, you will no doubt be very aware that there may come a time when you will need to step in on their behalf.
The process of starting to use an LPA is relatively straight-forward. However, it’s wise to take the time well before you need to in order to familiarise yourself with the process and ensure you are prepared.
Of course, in many cases, an LPA is never needed. However, if there does come a time when it is, supporting your loved one will be a great deal easier with an LPA in place than it would be without.
How do you know when it’s the right time?
One of the most difficult parts of starting to act as an attorney is deciding when is the right time to do so. In most cases, you will only be able to start using an LPA once the person who made it has lost mental capacity. This means they are no longer able to make decisions for themselves.
There isn’t necessarily a black and white rule for determining when someone has lost mental capacity. It may be that your loved one is still able to make some kinds of decisions reliably, but not others.
Generally, when considering mental capacity, you should consider whether the individual is able to manage all parts of the following process:
- Understand the scope of the decision they are making.
- Understand all the information they will need to make that decision.
- Remember all relevant information.
- Weigh up the information in order to make the decision.
- Communicate that decision in some way.
It’s important to remember that just because someone is making what you consider to be a poor or out of character decision, it doesn’t necessarily mean that person has lost mental capacity. It’s also important to keep in mind that you have a legal responsibility to make all possible efforts to support the person in making their own decisions before you decide to start using an LPA.
In cases where determining capacity is not straightforward, you may wish to consult a medical professional for a second opinion. A specialist solicitor will be able to help you navigate this process.
Checking the LPA has been registered
Before an LPA can be used, it needs to be registered by the Office of the Public Guardian. Most solicitors will advise that an LPA is registered as soon as it’s made, but not all people who make an LPA choose to do this. Once an LPA has been registered, the Office of the Public Guardian will issue an activation key, which gives access to an online LPA account.
You can tell whether an LPA has been registered by checking to see if the original document has been stamped on every page. If the original document is being stored by a solicitor, the solicitor will be able to confirm whether or not the LPA has been registered.
If the LPA has not been registered, this will need to be done before it can be used. Usually the person who made the LPA will register it while they still have mental capacity. However, if someone made an LPA while they had mental capacity but did not register it in time, an attorney can register it on their behalf. If you are an attorney in this situation, we recommend seeking legal advice as soon as possible.
Please note that it can take up to twelve weeks for the Office of the Public Guardian to complete the registration, and the LPA cannot be used during this time. At the time of writing, the Office of the Public Guardian are working at a significant delay due to the coronavirus pandemic and current guidance is to allow up to 20 weeks. If you are in an urgent situation and cannot wait this long, a solicitor will be able to advise on some practical solutions for managing this.
Using a registered LPA
Once the LPA has been registered and you have determined that the person who made it no longer has mental capacity, you will be able to start using it.
As part of the process of doing this, you will need to contact all relevant organisations the person has dealings with, including banks, utility companies and healthcare providers. Many organisations will have a specific process in place for allowing you to take over communications on behalf of your loved one, so make sure you check what these are and follow any specific instructions given.
You may need to ask a solicitor to make a number of certified copies of the original LPA. You will then be able to send these copies to any organisations that request them.
If you are using the government’s online LPA services, you will be able to use your online account to allow relevant individuals and organisations to view the LPA details.
Making ‘best interest’ decisions
It’s important to always keep in mind that as an attorney you are obligated to make decisions that are in the absolute best interest of the person you are acting on behalf of.
Being an attorney is a big responsibility, and many people find they need some additional support. A specialist solicitor will be able to help ensure you are doing the best job you can and that you are meeting all the legal obligations of the role.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you would like to discuss these issues further, please contact us.