Lasting Powers 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 if you are unable to do so. Making a Lasting Power of Attorney whilst you have mental capacity, gives you peace of mind and control over what happens to you if you ever become mentally incapable of managing your own affairs. Lasting Powers of Attorney are legally binding documents that are recognised by both financial and medical institutions. Without them in place, financial organisations and medical institutions will not be able to deal with the people you would otherwise want to act for you and look after your affairs.

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Lasting Powers of Attorney

There are two types of Lasting Power of Attorney: Property & Financial Affairs and Health & Welfare. You can choose to make one or both types. The benefits of having Lasting Powers of Attorney in place are that nobody can predict what could happen, today, tomorrow, or any day in the future. So, no matter what, by making Lasting Powers of Attorney now, you will have made sure that your affairs are taken care of.

Our advice would always be to make an appointment to discuss Lasting Powers of Attorney with a specialist Solicitor who can prepare Lasting Powers of Attorney for you, tailored specially to your personal and financial circumstances. If there are underlying family issues, complex or business assets involved, or other individual circumstances that need to be considered, the advice of a specialist Solicitor will ensure that you have appropriate Lasting Powers of Attorney in place, tailored to your circumstances.

It is much better to have LPAs put into place sooner rather than later. Once the Lasting Powers of Attorney are in place, you will have peace of mind that any issues that arise in the future can be dealt with quickly and you can ensure that your decisions and affairs will be managed effectively.

Health and Welfare Lasting Powers of Attorney

A Lasting Power of Attorney for Health & Welfare can be used to appoint Attorneys to make decisions such as where the donor should live, day-to-day care (for example, diet), who the donor should have contact with, and whether to give or refuse consent to medical treatment.
You will also need to choose whether your attorneys will be able to make decisions about any life-sustaining treatment. If you decide not to give this power to your attorneys, the responsibility will be passed over to your medical professional, i.e., your doctor. There is a common misconception that if you’re unable to take care of your health and welfare yourself, your partner, spouse, family, or friends are automatically able to do it for you. Unfortunately, unless they have been legally appointed as your attorney, they can’t.

Property and Financial Affairs Lasting Powers of Attorney

A Lasting Power of Attorney for Property & Financial Affairs can be used to appoint Attorneys to make decisions such as buying and selling property, managing a bank account and investments, dealing with tax affairs, and claiming benefits. It also has the option to be used whilst you still have your mental capacity – which can be useful if you have mobility issues, or you are out of the country for long periods of time.

If mental capacity is lost and you do not have your Property and Financial Affairs LPA in place, no one automatically has the authority to act for you, not even your spouse or children. This could lead to your bank accounts being frozen, bills not being paid and investments being unmanaged. If you have joint bank accounts with another person, these can be frozen. If you are a business owner, your business may not be able to continue with staff and suppliers not being paid. If you have rental properties, rental agreements could not be renewed with tenants. If mental capacity is lost and someone needs to be authorised to deal with these matters on your behalf and there is no Lasting Power of Attorney in place, then an application to the Court of Protection would be required which can take around 12-18 months, is a very costly process and may not result in the Deputy having as much freedom to make decisions. It is, therefore, much better to put a Lasting Power of Attorney in place instead whilst you have the mental capacity to do so.

How can I register or end a Lasting Power of Attorney?

Before Lasting Powers of Attorney can be used, they must be registered with The Office of the Public Guardian, this process currently takes between 4-5 months. An LPA for Property & Financial Affairs can then be used by your Attorneys straight away at your direction and can also continue to be used by them if you ever lost mental capacity. An LPA for Health & Welfare can only by used by your Attorneys in circumstances where you have lost your mental capacity. You can still cancel a Lasting Power of Attorney after it has been registered with the Office of the Public Guardian by signing a Deed of Revocation. If you have lost mental capacity, then you cannot revoke a Lasting Power of Attorney previously made.

Choosing an Attorney

The role of an attorney involves a great deal of power and responsibility so it’s important you trust the person or people you choose. Your attorney could be a family member, a friend, your spouse, partner, or civil partner. Alternatively, they could be a professional, such as a solicitor. You can appoint one or more Attorneys to act on your behalf and you can also appoint Replacement Attorneys to act on your behalf if your first named attorneys are no longer able to act on your behalf.

Your attorney must be over 18 and must not be an undischarged bankrupt. If you are appointing more than one attorney, you can choose to appoint them to act jointly or jointly and severally. If you appoint them to act jointly then all attorneys must make decisions together. If you appoint your attorneys to act jointly and severally then your attorneys may act together or separately as they choose. Your attorneys must always act in your best interests and in line with the principles of the Mental Capacity Act 2005 which are outlined in the Lasting Power of Attorney documents that your attorneys will sign.

Your attorneys are not usually paid for the time spent carrying out their duties as an attorney, unless they are a professional attorney such as a solicitor or accountant, who will charge fees for the time spent dealing with matters on your behalf. Attorneys can claim back any expenses from you that they incur as part of the role such as postage, travel costs or photocopying. They must keep an account of any expenses and relevant receipts.

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