Lasting Powers of Attorney Solicitors
Our Private Client Solicitors are specialists when working with lasting powers of Attorney. We have the necessary experience and compassion to advise on the best options for you and to help with the registration process.
What is Lasting Power of Attorney?
A Lasting Powers of Attorney or LPA is a legal document which allows a person (the Donor) to appoint someone (the Attorney) to assist in making decisions on their behalf. The document will need to be registered at the Office of the Public Guardian where it will become validated and the power can be granted to the Attorney.
There can be up to five Attorneys appointed, but many considerations have to be given when deciding who to appoint. For example, do you want all of the attorneys to act together, or independently? It is not uncommon for appointments to be made on a mixture of joint and independent. Every day issues such as controlling bank accounts could be managed by any one of your attorneys, however the more major decisions such as the investment of a large sums or the sale of your house could be done on a joint basis with all of your attorneys agreeing on the course to be taken.
What is the difference between Lasting Power of Attorney and Court of Protection?
Lasting powers of attorney (LPA) can be made at anytime, assuming you are of sound mental capacity, this is when you can choose who will manage your property, financial affairs and welfare when the time comes.
If someone has lost their mental capacity and they don’t have a Lasting Power of Attorney in place, an application will need to be made to the Court of Protection to appoint someone to act as a ‘deputy’. If successful they will receive an order telling them what they can and can’t do.
Your Attorney can only make decisions or take action on your behalf either at your specific instruction or if you are mentally incapable of doing so yourself.
Registering a Lasting Power of Attorney
For advice on registering the document, fee exemptions and remissions have a look on our Registering a Lasting Power of Attorney page.
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Podcast: Lasting Power of Attorney
Our Private Client team talk about the what Lasting Power of Attorney does, what it covers and the importance of making Lasting Power of Attorney (LPA).
Common Questions About LPA’s
What are the different types of Powers of Attorney?
General Power of Attorney
This is the simplest document and can only be used to give power over the Donor’s property and financial affairs. This type of document is useful for short-term needs, for example if the Donor is going away and wishes the Attorney to manage their affairs during that time. This does not stop the Donor from managing their own affairs and the Attorney will be accountable to the Donor for whatever decisions or actions made on the Donor’s behalf.
Enduring Power of Attorney
It is no longer possible to make this type of Power of Attorney, however EPAs that were made in previous years will still be valid and will remain so until cancelled or if the Donor dies. An EPA will cover the Donor’s property and financial affairs and will allow the Attorney to make decisions on the Donor’s behalf, but does not stop the Donor making these decisions themselves. However, if the Donor becomes mentally incapable of managing affairs themselves, the power given to the Attorney “endures” through the Donor’s illness so that the Attorney can carry on dealing with the finances on the Donor’s behalf.
Lasting Power of Attorney or Enduring Power of Attorney?
This document has replaced the Enduring Power of Attorney. There are two types of LPAs: “Property and Financial Affairs” and “Health and Welfare.” These documents allow the Attorney to make decisions on the Donor’s behalf in the same way as the EPA did for property and financial affairs, but the second document extends the Attorney’s powers to include decisions relating to the Donor’s health and wellbeing. These documents need to be validated at the Office of the Public Guardian before the power becomes active. Again, if the Donor becomes unable to manage their affairs themselves then the Attorney will continue to make the decisions of the Donor’s behalf.
When can an LPA be made?
The Donor must be over the age of 18 and must understand the following:
1. Understand the power they are giving to the Attorney
2. Understand the possible consequences of allowing an Attorney to deal with their affairs
3. Be aware of their assets and responsibilities
4. The document is the Donor’s choice – not because the Attorney is telling them they must
Can anyone make an LPA for someone else?
If the Donor understands the power they are giving to the Attorney, then no, somebody else cannot make an LPA. If the Donor is mentally capable, then they can make the LPA themselves.
What if addresses change?
A change in address will not affect the document unless the Donor moves outside of the UK.
What can an attorney decide?
The powers given under an EPA and a registered LPA for Property and Financial Affairs include:
- Buying and selling their house
- Opening, closing and operating their bank and building society accounts
- Buying, selling and dealing with their investments
- Claiming any benefits that the Donor is entitled to, such as their Pension or Attendance
- Allowance, and receiving and/or using any such benefits
- The Attorney must support and help the Donor to reach decisions. The Attorney must have regard to any note of guidance or instruction that the Donor may have included in the LPA
- The Attorney cannot make a Will or vote on the Donor’s behalf
- Unless the Donor gives the Attorney the power to, the Attorney cannot have access to the
- Donor’s Will.
Those for an LPA for Health and Welfare will include:
Giving or refusing consent to particular types of healthcare
Liaising with Social Services about care packages to enable the Donor to stay in their own home, or, if necessary, finding a suitable residential care or nursing home
Every day decisions such as what the Donor should wear or what meals they will have
The Attorney must support and help the Donor to reach decisions. The Attorney must have regard to any note of guidance or instruction that the Donor may have included in the LPA
Does anyone else have to know?
Yes. The Donor must appoint someone to act as their Certificate Provider. That is someone who will go through the document with the Donor and ensure they understand the powers they are giving to the Attorney. The Certificate Provider will then sign the document to confirm that they are satisfied that the Donor understands the purpose of the LPA.
It is not compulsory, however it is advisable to notify at least one other person so that they can raise any concerns that they might have about the proposed Attorney at the time of registration.
How many Attorneys can be appointed?
The Donor can appoint as many Attorneys as they wish, however they need to bear in mind that the Attorneys must get along together. The Attorneys deal with specific matters such as:
- Joint – All chosen Attorneys must make decisions and sign documents on the Donor’s behalf regardless of the geographical distance between them.
- Joint and Individual – Any one of the Attorneys can make decisions and sign documents on the Donor’s behalf without reference to any of the others
- A mixture –The Donor may wish for two of the Attorneys to act jointly on decisions concerning a particular matter. The Donor would need to make the instructions clear as to who can do what and when.
Why does anyone need an Attorney?
Whilst someone may be perfectly capable of managing their affairs right now, illnesses and accidents can happen. The preparation of this document forms part of a person’s forward planning.
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Charitable Trustees should seek to maximise the return on their investments; except where the investment is in explicit conflict with the Charity’s purposes.
By having a Lasting Power of Attorney (LPA) in place, it allows you to appoint one or two close friends or relatives to make decisions.
The lack of a central registry means that without having direct access to the virtual wallet valuing and indeed paying any tax due becomes impossible.
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We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2022 by Legal 500 and Alistair McArthur is ranked in Chambers 2021.