Brown & Company Solicitors Market Harborough  
 
Home
Residential Conveyancing
Commercial Property
Wills & Probate
Wills
Probate
Elderly Clients
Enduring Power of Attorney
Court of Protection
Glossary of Terms
Commercial Business
Contact Us



   
 
 

Lasting Powers of Attorney

 
 

Lasting Powers of Attorney
A Lasting Power of Attorney is a powerful legal document which allows you to choose the people you want to be able to make decisions on your behalf in the event that you are unable to make the decisions for yourself. 

What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a document in which you (“the Donor”) appoint trusted members of your family or friends or possibly a professional person to attend to your financial affairs or personal welfare in the event that you are unable to do so for yourself (“Attorney”).

There are two kinds of LPAs:-

  • LPA for Financial Decisions

This document will allow an appointed attorney to make decisions about your bank accounts, shareholdings, paying bills, dealing with any property you own etc.  This document can be put into use prior to loss of mental capacity if the Donor wishes for specific assistance in these areas.

  • LPA for Health and Care Decisions

This document can only be used if you have lost mental capacity and gives your appointed attorneys the authority to make decisions about treatment, medication, where you live (eg in a residential home) and also, if you give them this specific power, over life sustaining treatment. 

Both kinds of LPAs have to be registered with the Office of the Public Guardian before they can be put into use.  This process takes a number of weeks and we recommend our clients register their LPAs at the time of their creation to avoid any delay should they need to be put into use.  We can assist you with the registration process.

Do you have to appoint the same Attorneys for dealing with your Health & Care Decisions and your Financial Decisions?
No, you can appoint different attorneys for different aspects of your life.  Indeed, you can choose to appoint a professional attorney or trust corporation to be your attorney.

Do you have to make both LPAs?
No, whilst you can have both LPAS you can also choose to have either the LPA for Financial Decisions or the LPA for Health & Care Decisions.


 

Who can be an attorney?
You should consider your choice of attorney very carefully.  It is a position of great responsibility and you should only select a person or people you trust completely.  Only people over the age of 18 can be an attorney and undischarged bankrupts cannot act as attorneys on the Property & Financial Affairs LPA.

Choosing your Attorneys
This is the most important decision you will have to make when making a LPA.  You must consider your choice of Attorney with your head as well as your heart.

When appointing an Attorney for a Health and Care Decisions LPA you could be giving someone the power of life and death and you need to be certain that should it become necessary that they could make potentially difficult decisions with your best interests at heart.

The choice for an Attorney for Financial Decisions is no less crucial. Is the person you want to appoint good at dealing with their own finances? Do you believe that they will be able to manage your financial affairs honestly and effectively?

Deciding how your attorneys make decisions
If you appoint more than one attorney you need to decide how they make decisions on your behalf.  You can either give your Attorneys the ability to work independently of one another or you can decide that all decisions must be considered and agreed on by all of your Attorneys.  The two main options for how your Attorneys can act are:-

  • Jointly – this means that all decisions must be made jointly by all of your Attorneys. Whilst this might seem the safest option it can potentially cause delays in decisions which may need to be made quickly. The other potential issue with this method is that if one or more of your Attorneys should die or become incapable of dealing with your affairs then your LPA would no longer be useable.
  • Jointly and Severally – this means that your Attorneys can make decisions on your behalf either jointly or independently.  Many people find this to be the best option, particularly as if something should happen to one of your Attorneys then your LPA can still be used by your remaining Attorneys.
 

The last option is a combination; you can specify on what occasions you would want your attorneys to be able to act independently and when you would require them to act together.  If you choose this option it is crucial that your guidance is very clear as using the wrong wording could restrict the actions of your Attorneys in ways you may not have intended.

Safeguards for making an LPA
When it comes time for you to sign your LPA you will have to have a Certificate Provider who will also sign the LPA. This Certificate Provider can be a professional person (your solicitor or doctor) or a person who has known you for a long time and they are signing to confirm that they believe you understand the decision you are making in signing the LPA and that you have not been coerced into making it by your Attorney(s).

You can also choose one or more persons to be told in the event of your LPA being registered. This person can be a friend, family member or even a neighbour. On applying for the registration a notice is served on the person(s) you have chose to be told and if they have any concerns over the registration they can notify the Office of the Public Guardian who can investigate since 1st January 2016 this is optional.

Can someone who lacks mental capacity make an LPA?
No.  In the event of a person losing mental capacity to deal with their own affairs and not having already made an LPA (or EPA prior to October 2007) an application must be made to the Court of Protection for a Deputyship Order. 

If I have an Enduring Power of Attorney do I have to make a new LPA?
No, Enduring Powers of Attorney  created before 1st October 2007 remain valid even if they have not yet been put into use.  An EPA (unlike a LPA) does not have to be registered with the Office of the Public Guardian before being put into use as long as the Donor has mental capacity.  However, if there is suspicion that the Donor is no longer capable of dealing with their own affairs then the EPA must be registered with the OPG.

Whilst you don’t have to make a new LPA if you hold a valid EPA the Lasting Power of Attorney can be used to give greater powers to Attorneys and also gives the Donor more scope for guiding their Attorneys’ actions in the future.  Also, an EPA does not give an Attorney the right to make decisions about the Donor’s Health and Welfare.

To find out more about Lasting Powers of Attorney please contact us.