A Guide to Lasting Power of Attorney

January 7, 2021, By

In an ideal world, we would all be able to make our own independent decisions in the future, especially regarding our own personal welfare. Sadly, this isn’t always how things work out, therefore it would be a wise decision to plan and prepare for the future.

A reassuring way to ensure you have a trusted person to help with your decision making is by appointing a Lasting Power of Attorney (LPA). This allows you to legally appoint a person or people that you trust to make decisions on your behalf when you are unable to do so. Without a Lasting Power of Attorney in place, you can run the risk of leaving key decisions around your health, welfare and finances to chance.

What is an attorney?

An attorney is someone who is chosen to act on behalf of someone else. When someone (called the ‘donor’) makes a Lasting Power of Attorney (LPA) they select someone to make decisions for them if they are to lose mental capacity. The person chosen to help the donor is the attorney, and should be trustworthy and reliable.

What is an LPA?

An LPA is a formal legal document which grants an attorney the authority to make important financial and healthcare decisions on the donor’s behalf if the donor develops an illness which leaves them mentally incapable of making important decisions.

There are two types of LPA:

  • Finance and Property – The attorney can make decisions relating to the donor’s finances and property. This includes management of bank accounts, investment decisions and purchase or sale of property.
  • Health and Welfare – Your attorney has the power to make decisions in relation to issues such as medical care received, social activities and life sustaining treatment.

 

How does an LPA work?

LPA’s must be registered with the Office of the Public Guardian before they can be used. They can be registered by the donor when they are made, or by the attorneys when the donor loses capacity. The donor can revoke an LPA or EPA at any time while they still have capacity to do so.

Who can be an attorney?

Attorneys have to be over the age of 18 who have mental capacity, able to make their own independent decisions and not bankrupt. They should also be people that the donor trusts who are able to make decisions based on the best interests of the donor’s long-term future and be able to discuss preferences with the donor.

When appointing an attorney, you may consider family, friends or professionals. Keep in mind that you want people who know you well enough and would be happy for them to make decisions on your behalf.

Can you have more than one attorney?

You are allowed to register several attorneys under the same LPA, should you wish the responsibility to be shared between more than one person. It is, however, essential to clarify whether these people hold the power to act separately, or whether they must reach a joint agreement on any decisions they make.

How to get an LPA

When setting up an Lasting Power of Attorney, you should first choose who you wish to have this responsibility, then register this agreement with the Office of the Public Guardian.

It must be submitted by the donor. Separate applications should be made for each type of LPA.

When is an attorney appointed?

Knowing whether somebody has sufficient mental capacity to make decisions for themselves is a central element of the power of attorney process, and in determining when the document is due to come into effect. If the donor cannot make decisions for themselves because of an illness or disability, they can be said to lack sufficient mental capacity.

It is possible to determine whether a person holds the necessary mental capacity by confirming whether or not they can:

  • Give a clear indication that they understand the information that is presented to them, whether verbally or through sign language.
  • Recall previous information that has been clearly explained to them.
  • Communicate their decision beyond doubt.

If these concerns are raised and it confirms the donor can no longer meet these requirements, the Lasting Power of Attorney previously registered will come into effect.

Do I need an LPA?

Having a Lasting Power of Attorney in place will give you peace of mind that all your affairs will be taken care of by those that you trust and have personally appointed. This can make life a lot easier for those involved, avoid disputes and save a lot of money in the long run.

It is important to remember that they are powerful documents so it is vital that you obtain expert advice when creating it so that you can make fully informed decisions.

If the prospective donor did not have the foresight to register an LPA, it will be left to the Court of Protection to decide who is appointed to manage their welfare and finances. The family will have no control over the court’s decision in this respect, and it often drags the process out for far longer than if the donor registered their LPA ahead of time and can be expensive. If this is the case, our Court of Protection team can help. Our Head of the team, Chris Partington is a Court-Appointed Deputy.

How we can help

If you have any questions or would like any advice about whether to make a Lasting Power of Attorney, you can speak with our team of specialists. You may wish to do this when writing or updating your Will.

You can call us on 0161 969 3131 or fill in our contact form and we will be in touch.