What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you (the Donor) to choose someone (the Attorney) to make decisions on your behalf when you no longer wish to make those decisions, or you lack the mental capacity to do so.

An LPA is the way to ensure that the people you trust will be able to make important decisions on your behalf if you become mentally or physically incapable of doing so for yourself.

 

Make an LPA while you have mental capacity

You may make an LPA at any time provided you have the necessary mental capacity.

Assessing capacity is usually straightforward. However, sometimes it may be difficult, and may require the assistance of a doctor or other professional person.

Broadly speaking, capacity means that you have a general understanding of what decision you need to make, and the consequences of making or not making that decision at the time it is being taken.

You’re in control…

Making an LPA does not restrict your right to control your affairs for as long as you are able. The appointment of an Attorney means that there is someone to take over if you cannot cope or would just like some help. At any time you may ask your Attorney to take responsibility for various aspects of your financial and property affairs.

 

Types of LPA

There are two types of LPA, covering property and financial affairs, and health and welfare.

You may make either or both types of LPA, but it is important to note that an LPA has to be registered with the Office of the Public Guardian before it can be used, and we explain more on this below.

While LPAs are most often used to deal with the affairs of the elderly, if they are prepared earlier in life they will give the same protection in the event of incapacity as a result of illness or accident

Selecting an Attorney

One of the most important decisions to make is who to appoint as your Attorney and care should be taken.

Your Attorney should be someone you trust to make decisions in your best interests, have the necessary skills to do so and with whom you have a good relationship. The person you choose has to agree to act as your Attorney and it is important they understand the responsibilities involved.

You can make alternative appointments, for example appointing your spouse and your child, with the
child to act if the spouse has died or can no longer act for some other reason. You do not have to choose the same attorney(s) to act under a Property and Financial Affairs LPA and a Health and Welfare LPA, because the responsibilities are very different.

If you do choose different attorneys, you should consider how they may work together, for example in choosing and paying for residential care.

 

Having more than one Attorney

If you appoint more than one Attorney, they can consult on how to exercise the powers they are given, and there is a check on the misuse of those powers.

If you do appoint more than one person they should have a good relationship and you should specify whether they are to act together (jointly) or together and separately (jointly and severally). If they are to act together, then they have to agree on every decision, and any documents have to be signed by both of them.

If they are to act together and separately, then each of the Attorneys will be able to act together with the other or on their own, and most documents will only require one signature and this is usually simpler to operate in practice.

The appointment of joint Attorneys will terminate if one does not take up the appointment or dies, loses mental capacity, becomes bankrupt (for a Property and Financial Affairs power only) or (in the case of a spouse or partner) on dissolution of a marriage or civil partnership, because they can no longer act together. This would not apply if the Attorneys were given joint and several authority.

 

When does an LPA become active?

Your Attorney(s) will only be able to act once the LPA has been signed by you and your Attorney(s), and certified by a suitable person (Certificate Provider) that you have not been pressured into making the LPA.

The Certificate Provider must complete a certificate to confirm that, in his or her opinion, you are making the Lasting Power of your own free will, that you understand its purpose and the powers you are giving your Attorney. This is an important safeguard and your Lasting Power is not valid unless the certificate is properly completed.

The LPA must also be registered with the Office of the Public Guardian before it can be used. This is a paper exercise but can take several months so we recommend you make an application to register as soon as the Lasting Power has been signed, in case there is a later need to take urgent action. Remember, Health and Welfare LPAs can only be used once you have lost capacity – until that time you make the choices.

 

How long does an LPA last?

An LPA can end in two ways:

  1. You may cancel your LPA, even after it is registered, provided you have the mental capacity
    to do so. If you do, then you must tell your Attorney and, if the LPA has been registered, you
    will need to ask the Office of the Public Guardian to remove it from its Register.
  2. An LPA also comes to an end when the Donor dies; this means that the Attorney(s) no longer
    have the authority to make decisions on behalf of the Donor. If there is a valid Will in place,
    then the estate will be managed by the Executors named in the Will. If there is not a valid Will,
    the estate will be dealt with in line with the Intestacy Rules.
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