Lasting Powers of Attorney Solicitors

Lasting Powers of Attorney (or often referred to as LPAs) are legal documents which allow 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 before it can be used.

There are two types of LPAs: “Property and Financial Affairs” and “Health and Welfare.” The first of these documents allow the Attorney to make decisions on the Donor’s behalf in relation to property and financial affairs, whereas the second document extends the Attorney’s powers to include decisions relating to the Donor’s health and wellbeing.

You may appoint one or more people as your Attorneys, but many considerations have to be given when deciding who to appoint. For example, do you want all of your Attorneys to act together, or independently? Alternatively, it is possible to appoint your Attorneys to act jointly in respect of some decisions and jointly and severally in respect of other decisions.

It is important to remember that your Attorney must always act in your best interests and are governed by the Mental Capacity Act.

Before LPAs can be used, they must be registered with the Office of the Public Guardian.

Our Private Client solicitors will be able to advise on the best option for you in your circumstances.

Lasting Power of Attorney (LPAs) is a legal document. 

There are two types of LPA:

• Property & Financial Affairs
• Health & Welfare

The Property & Financial Affairs LPA will allow your attorney(s) to, for example, access your bank accounts, withdraw money on your behalf, pay your bills and deal with your pensions and investments. They can also buy and sell property on your behalf.

Health and Welfare LPAs allow your attorney(s) to make decisions about your care, where you are cared for, decisions about life sustaining treatment and ensuring, in general terms, that you are properly looked after.

LPAs allow you to appoint a person or persons to manage your affairs and make decisions on your behalf. You can appoint your spouse, children or other family members or friends that you trust. If you are unsure who you should appoint, you can even appoint a solicitor or a Trust Corporation as your attorney.

It is possible to appoint one or more replacement attorney to act in the event that your primary attorney is unable to act.

Lasting Powers of Attorney (LPAs) can be made at any time, assuming that you have the requisite level of mental capacity.

If someone has lost their mental capacity and they do not 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 setting out the extent of their powers.

LPAs need to be registered before they can be used by your attorneys, a process which we are currently being advised takes up to 20 weeks. As such we advise clients to register their LPAs immediately upon completing them.

Please do contact us if you feel that this is an aspect of your affairs that you would like our assistance with.

In the event that you hold a joint bank account with someone else difficulties can arise if you do not have a LPA and one of you loses mental capacity. The bank will often not allow the joint account holder to continue operating the account unless they have an LPA for the person who has lost mental capacity. This will mean that neither of you will be able to access the funds in the account.

A lasting power of attorney (LPA) can typically be created by an individual while they are of sound mind and capable of making decisions for themselves.

The Donor must be over the age of 18 and must understand the following:

• The extent of the power they are giving to their Attorney
• The possible consequences of allowing an Attorney to deal with their affairs
• Be aware of their assets and responsibilities

It’s important to consider creating an LPA well in advance of any potential incapacity, as it cannot be established once a person has lost the mental capacity to make decisions. Waiting until a person is no longer capable could result in more complex legal proceedings, such as applying to the court for deputyship (in some jurisdictions) to manage affairs on behalf of the individual.

In the event that your personal circumstances change you should seek advice as to whether your LPA needs to be updated. However, minor changes such as a change of address will not invalidate the LPA.

The powers given under an EPA and a registered LPA for Property and Financial Affairs include:

• Buying and selling the Donor’s property
• Opening, closing and operating the Donor’s bank and building society accounts
• Buying, selling and dealing with the Donor’s investments
• Claiming any benefits that the Donor is entitled to, such as their Pension or Attendance Allowance and other State benefits

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.

The powers given under a Health and Welfare LPA 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
• Everyday decisions such as what the Donor should wear or what meals they will have

The Donor should ensure that they have discussed their wishes with the proposed Attorneys to ensure that they are happy to act.

In the event that you hold a joint bank account with someone else difficulties can arise if you do not have a LPA and one of you loses mental capacity. The bank will often not allow the joint account holder to continue operating the account unless they have an LPA for the person who has lost mental capacity. This will mean that neither of you will be able to access the funds in the account.

If you lose mental capacity, become immobile or you no longer wish to deal with your finances, the Property and Financial Affairs LPA can be used as soon as it has been registered. The Health and Welfare LPA can only be used if you have lost mental capacity.