Topics to be answered in this article
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a document that allows a person to appoint trusted individuals (known as an attorney) to make important decisions about their health and welfare and/or their property and finances on their behalf.
Related reading: A lawyers top tips on creating a lasting power of attorney
What types of Lasting Powers Attorney are there?
There are two types of LPA, one focusing on property and finance and one focusing on health and wellbeing.
Property And Financial Affairs LPA is used to give an attorney the power to make decisions about your money and property, such as:
- Accessing and using bank accounts
- Managing investments
- Collecting your benefits or pension
- Paying your bills
- Buying or selling property
Health and Welfare LPA can be used to give an attorney the power to make decisions about things like:
- Giving or refusing to consent to medical treatment
- Your medical care and accessing your medical records
- Where you will live and with whom
- Life-sustaining treatment
- Decisions on your care plan including their diet, how you should spend your day
Why you might need a Lasting Power of Attorney?
You might fall ill, suffer an accident, or lack the mental capacity to make these decisions by yourself. It’s comforting to know you’ll have somebody there to make these decisions for you. To make your LPA you need to be over 18 and still have the mental capacity to do so.
When should you make an LPA?
There is never a “right time” to create your Lasting Power of Attorney. Our advice is, the sooner the better! Once your LPA is created, you have peace of mind. You need to have what is known as ‘capacity’ to register your LPA. The implication being making an LPA is something that needs to be done before you need it, not afterwards.
Who can you appoint as an attorney?
The person appointed to act on behalf of the donor is called an attorney. Anyone can be an attorney, so long as they can make decisions, and are 18 or over.
What happens if you don’t have an LPA in place?
If you lose mental capacity and there is no Lasting Power of Attorney in place, a friend or relative will need to apply to the Court of Protection to become a deputy before they can deal with matters on your behalf. At an already stressful time this can be a lengthy and costly process, that’s why we recommend you have a solicitor to help prepare a Lasting Power of Attorney in advance.
What is involved in making a Lasting Power of Attorney?
There are five main parts of a Lasting Power of Attorney:
The Donor: This is the person making the Lasting Power of Attorney
The Attorneys: These are the people being given the power to act on behalf of the Donor. You can appoint people to act as replacements in the event that your “first choice” cannot act.
The Certificate Provider: This is an independent person (not an Attorney) who can confirm that the Donor understands and has the mental capacity to prepare the document. This can either be someone who has known the Donor for over two years, or this can be a professional person that is capable of assessing mental capacity.
The Signatures: The document needs to be signed and witnessed
The Registration: In order for the Attorney’s to use the Lasting Power of Attorney, it must be registered with the Office of the Public Guardian.
How to apply for an LPA?
You can apply for a Lasting Power of Attorney without the need for a solicitor, however, given the implications of the decision you will be making, including any restrictions you may wish to include, it is strongly suggested that you use a legal professional. A Solicitor can also act as your Certificate Provider (confirming your mental capacity) and witness your signatures throughout the document, saving you another job.
How can Goughs help?
Goughs have many years of experience working with people wishing to make a Lasting Power of Attorney. We can help explain the choices you will need to make and help create an LPA that best reflects your needs and wishes. If you have any questions about making an LPA or would like to find out more, contact us today to arrange an appointment with one of our solicitors. We look forward to hearing from you.
Frequently asked LPA questions
Can I limit the authority I give to my attorney?
Yes – it is possible to place restrictions within the LPA document to limit what your attorney can do on your behalf. It is also possible to offer written guidance to your attorneys, should you wish to do so.
Am I too young to make an LPA?
You are never too young to think about making a Power of Attorney. A question we get a lot of the time is “aren’t Lasting Powers of Attorney just for the elderly?”
The answer is no, but it is more common for older people to consider making Lasting Powers of Attorney. This is because health conditions linked to getting older may make the need for a Lasting Powers of Attorney more relevant.
I have a Will in place, do I still need an LPA?
A Will and a Lasting Power of Attorney are separate documents. A Will only takes effect after death. A Power of Attorney relates to a person’s lifetime affairs and the document ceases after death.
Who can make a lasting power of attorney?
You can choose and appoint a family member, friend, or anyone willing to act for you, providing they are aged over 18. You can also appoint your spouse, partner, or civil partner as your Attorney if you wish.
If you choose your spouse or civil partner, it is important to remember that should your marriage or civil partnership be dissolved or annulled in the future then the LPA will cease, unless:
- You have included a condition within the LPA that your spouse or civil partner can continue to act as your Attorney
- You have appointed a replacement Attorney able to replace them
- You have appointed Attorneys to act together and independently
Can I appoint more than one attorney?
You can appoint as many Attorneys as you wish, but it is important that you consider how you are appointing them. You will need to specify whether you want to appoint your Attorneys to act:
- Together – they must all agree before acting on a certain issue.
- Jointly and severally – they can act together, but also on their own.
- Jointly in respect to some matters and severally in respect to others. This means that they must agree on certain issues, but act independently for others.
How do I choose my attorney?
When choosing an Attorney, it is important that you are confident that they know what you want and that you are comfortable that they will be making decisions on your behalf. It is important to choose someone you know well; someone you trust to make decisions in your best interests and someone who is happy to take on the role.
I don’t have a next of kin, who will make decisions for me should I be unable to?
You may wish to put in place a Lasting Power of Attorney so that you can choose who can make decisions on your behalf should you be unable to. You can appoint a friend, relative or professional, such a Solicitor.
Can I change who I wish to appoint under a Lasting Power of Attorney?
Once you have created and registered your Lasting Power of Attorney, you can remove an Attorney by submitting a legal deed to the Office of the Public Guardian, whilst you still have capacity. However, you cannot add a new Attorney without creating an entirely new Lasting Power of Attorney.
Can I still make decisions once I prepare my LPA?
A health and welfare LPA can only be used when you’re unable to make your own decisions.
A property and financial LPA can be used either before or after you lose the mental capacity to make your own decisions unless the LPA specifically states otherwise. For both LPA’s, you can restrict the types of decisions your attorney can make.
What are the responsibilities of an Attorney?
You must give the Donor (the person you are making decisions on behalf of) all of the help they need to make the decision before deciding that they do not have the capacity to make it themselves. You should provide all the information necessary to help them make the decision and ensure that they fully understand it. If the Donor cannot tell you in words, perhaps you could suggest alternative ways in which they could communicate their decision (blinking, nodding, or squeezing your hand).
Even if you decide that the Donor does not have the requisite capacity to make the decision for themselves at that time, you should encourage the Donor’s involvement as much as possible.
All decisions must be in the Donor’s best interests. You should consider their values, feelings and wishes and in particular their moral, political and religious views. You should not make assumptions about the Donor’s best interests based on their appearance, sexuality, gender, age, health, or behaviour.
Won’t my spouse automatically make decisions for me if I lose capacity?
Not automatically. Without having a Lasting Power of Attorney in place, no one has the automatic right to make decisions. While it is likely that a spouse will be consulted on medical decisions, the spouse will not have an automatic right to make any financial decisions on behalf of the other spouse that has lost capacity.
I have a spouse and children. Do I need a Lasting Power of Attorney?
Without having a Lasting Power of Attorney in place, no one has the automatic right to make decisions.
Whilst close family members may be consulted on medical decisions, no one will have the right to make any financial decisions on behalf of a spouse or parent if that person has lost capacity.
What is a certificate provider?
A certificate provider is a person who can certify that you have the mental capacity to make the Lasting Power of Attorney. This can either be someone who has known the person making the Lasting Power of Attorney for over two years or a professional person that is capable of assessing mental capacity, for example a solicitor or a medical professional.
What’s the difference between a Lasting Power of Attorney and a Deputy?
An attorney is appointed by the individual whilst they have capacity in preparation for when they lose capacity. A deputy is appointed by the Court of Protection once an individual lacks capacity.
A Lasting Power of Attorney provides you with complete control over who is appointed to make decisions on your behalf and look after your affairs as well as determining the extent of their authority.
Do I need a Solicitor to appoint a Lasting Power of Attorney?
Many people consider that setting up the LPA can be done without legal help, but we consider it is best to seek legal advice, given that the LPA is such a powerful and important legal document.
A Solicitor can also act as your Certificate Provider (confirming your mental capacity) and witness your signatures throughout the document, saving you another job.
