Powers of Attorney

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney is a powerful legal document. It enables you to appoint one or more people that you trust (attorneys) to manage your affairs for you during your lifetime. This could be because you are physically or mentally incapable of doing so yourself, or perhaps because you want some support dealing with things.  You can only make a Lasting Power of Attorney if you are mentally capable of doing so, and so this is ideally something to get in place well in advance of actually anticipating needing it.

There are two types of Lasting Power of Attorney, one dealing with your financial affairs and the other with your health and welfare. 

Lasting Power of Attorney for Property and Financial Affairs

An LPA for Property and Financial Affairs allows your attorney to deal with any aspect of your financial affairs, from paying your utility bills, through managing your bank accounts and investments, and even buying or selling property. 

Depending upon how your word your LPA, it can come into effect as soon as everyone has signed it and the LPA has been registered, or your can specify that it can only be used if you have lost mental capacity. If it comes into effect straight away, you remain in control while you are mentally capable and your attorneys should only do what you ask them to do.
 

Lasting Power of Attorney for Health and Welfare

An LPA for Health and Welfare can only be used if you are mentally incapable of making a decision for yourself, but in those circumstances would allow an attorney to make decisions about medical treatment, care, and day-to-day living. 

If you wish, you can also allow your attorney to make decisions about ‘life-sustaining’ treatment on your behalf.

Attorneys

With both types of LPA, it is really important to choose attorneys that you are sure you can trust to act in your best interests at all times. Many people appoint their spouse and/or children, but sometimes another family member or a close friend might be more appropriate.  In some situations it may be better to appoint a solicitor as your attorney.

Attorneys can be appointed ‘jointly’ or ‘jointly and severally’ and you can also appoint one or more ‘replacement’ attorneys to step in if your original attorney is permanently unable to act for you. Although this looks like a tick-box exercise, your choices here are important, and the wrong decisions can seriously limit the usefulness of your LPA.

Preferences and Instructions

In both types of LPA you can include additional guidance and instructions to ensure that your attorneys are aware of your particular wishes and views on certain things. This can either guide or bind your attorneys, depending on the wording.

It is important to take proper legal advice to ensure that these preferences and instructions properly reflect your wishes, and are legally valid.

Certificate Provider

Once you have signed your LPA, you will need to discuss these with your ‘Certificate Provider’. A Certificate Provider is someone who is able to sign to confirm that you have the necessary mental capacity to make an LPA, and that you are not being pressured into doing so. 

Ideally your Certificate Provider would be a lawyer or doctor who is skilled at assessing mental capacity and spotting problems. However, it is possible for that person simply to be someone who knows you well - bear in mind though that in some circumstances your Certificate Provider may be asked to give evidence and justify their decision to sign. 

If you instruct a solicitor to prepare your LPA, the solicitor will usually act as Certificate Provider too, unless there are doubts about mental capacity in which case a medical report may be required.

Registration

An LPA is valid as soon as it has been signed by the donor, the Certificate Provider, and the attorney(s). However, it can’t actually be used until it has been registered by the Office of the Public Guardian, a process which usually takes around three to four months.

Can I make an LPA myself?

It is possible to make your LPA(s) yourself, using the form on the government’s website.

However, using a solicitor or qualified lawyer ensures that you have the correct advice about how your attorneys should be appointed, whether preferences and instructions should be included, and that you properly understand the LPA and the responsibility and power that you will be giving your attorneys. 

A solicitor will also ensure that the document is completed correctly, that any additional preferences and instructions are properly worded, and that everyone signs correctly and in the required order, all of which could otherwise cause the LPA(s) to be rejected by the Office of the Public Guardian on registration. 

Proper legal advice ensures that your LPA is not only legally valid but is actually helpful when you need it. 

Deputyship 

Lasting Powers of Attorney can only be made while the donor is mentally capable. If these are not in place when someone has lost capacity then it may well be necessary to apply to the Court of Protection for Deputyship in order to manage their affairs instead. The Deputyship process is quite lengthy and expensive, and Deputies are subject to ongoing monitoring by the Court of Protection. For this reason it is usually best to make an LPA in advance where at all possible.

Vulnerable and Elderly Clients

Sometimes older clients in particular can need additional support when making a Lasting Power of Attorney. I have completed specialist training to become a full accredited member of the Association of Lifetime Lawyers, equipping me with the skills needed to provide extra assistance.  

As a consultant solicitor I am pleased to be able to visit clients in their own homes, which is usually much less daunting than attending a solicitor’s office, and to give each client as much time as they need to discuss matters with me. I will be the only person involved in making the LPA, so it will be me that visits to take the instructions, and me that visits again to sign everything. 

Enduring Powers of Attorney

Before 1st October 2007 it was possible to make Enduring Powers of Attorney (EPAs), appointing attorneys to manage your financial affairs (but not your health and welfare).  Existing EPAs are still valid, and can be used without being registered whilst the donor is mentally capable.   I  have written a separate guide here about EPAs.

Fixed-fee LPA Pricing

You can find my fixed-fee pricing for preparation and registration of LPAs here.

If you would like any further information about LPAs, simply call me now on 01379 450124, email me on emma@emmatrick.co.uk or complete a free online enquiry.