Your Guide to Lasting Powers of Attorney

This guide from Consultant Private Client Solicitor, Karen Markall, discusses everything you need to know about Lasting Powers of Attorney, the most common kind of Power of Attorney in the UK.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document which enables you to choose someone (the Attorney) you trust to make decisions on your behalf about, for example, your finances and property at a time in the future when you are no longer able to do this yourself.

An LPA can be made by anyone aged 18 or over, with capacity to do so. You cannot make an LPA jointly with another person – each person must make their own.

The Advantages of an LPA

There are many advantages to having a Lasting Power of Attorney, including:

• Attorneys can be appointed to handle property, financial, health and welfare issues.
• LPAs must be registered with the Office of the Public Guardian (OPG) before being used.
• The person making the LPA (the Donor) can ask for people to be notified when the LPA is registered with the OPG, allowing for objections to be raised if they suspect the Donor was unduly pressured into making the LPA or lacked capacity when they made it.
• Different Attorneys can be appointed to make different types of decisions. Replacement Attorneys can also be appointed to act if an original Attorney is unable to act for specified reasons.
• Attorneys can authorise health and welfare decisions on behalf of Donors who lack capacity to make decisions about life sustaining treatment.

The Two Different Types of LPA

In the UK, there are two different types of Lasting Power of Attorney: Property and Financial Affairs LPA, and Health and Welfare LPA. Here is a brief outline of each one:

Property and Financial Affairs LPA

This will authorise your Attorney to make decisions on your behalf concerning financial matters. This could include paying bills, collecting income or benefits or selling your property (subject to any conditions the Donor may have imposed when they made the LPA). You can appoint an Attorney to manage your property and financial affairs whilst you still have capacity. Please note that the LPA must be registered with the OPG before it can be used.

Health and Welfare LPA

This will authorise your Attorney to make decisions about your health and care when you lose capacity. It cannot be used whilst you still have capacity to make these decisions for yourself.

You can decide whether you wish for your Attorney to have authority to make decisions regarding life sustaining treatment.

You will still be able to make an Advance Decision (sometimes known as a Living Will) whilst you still have capacity in order to refuse specified treatment at a point in the future when you lack capacity to make such a decision.

Choosing your Attorney

An LPA is a powerful legal document. The person or people you appoint as Attorney(s) will have the same control as you do over your money, savings, investments, and property. When choosing your Attorney you must be confident that they know what you want. They should be someone you know well and trust. They must be over 18 or a trust corporation. You may choose more than one Attorney, and you will need to decide how they should act.

Paying Attorneys

An attorney is entitled to out of pocket expenses incurred whilst carrying out their duties. Professional Attorneys such as solicitors and accountants will charge for their services.

Do Attorneys Have the Power to Make Gifts?

The powers given to Attorneys do not necessarily allow them to make gifts on behalf of a Donor, other than on customary occasions such as Christmas or birthdays to people you would normally be expected to make gifts to. In addition, the size of such a gift must be reasonable, having regard to your estate.

What if I do not have an LPA?

If you lose capacity in the future and you have not appointed an Attorney to act on your behalf in relation to your property and financial affairs, then someone will apply to the Court of Protection to be your Deputy or Appointee. You will not be able choose who this person is. The process to be appointed as a Deputy is more time consuming and more expensive than making an LPA.

The Court of Protection rarely appoints people to act as a Health and Welfare Deputy.

Please note that this is a summary, if you have any questions or require further information in relation to Lasting Powers of Attorney then please do not hesitate to contact me.