What is a Lasting Power of Attorney (LPA)?
We all hope to go on running our lives for as long as we can, but need to plan ahead for a time when we may need help in making decisions.
A Lasting Power of Attorney is a legal document where you appoint one or more people (the attorney) to act on your behalf, in circumstances where you no longer have capacity to make decisions yourself. You can decide who you appoint, what powers they have and specify any wishes you want followed.
Having a Lasting Power of Attorney in place can avoid the expense and the potential difficulties of Court of Protection Deputyship if you later need someone to act on your behalf.
- There are two types of LPA:
- Property and financial affairs
- Health and welfare.
Under a property and financial affairs LPA, your attorneys can make decisions on your behalf such as buying and selling property, opening and closing bank accounts, dealing with your investments, managing your day to day finances, and claiming benefits and pensions. This type of LPA can be used at any time, even if you still have capacity. In those circumstances, it should be used by your attorneys with your consent.
A health and welfare LPA can only be used if you have lost capacity to make health and welfare related decisions. It enables your attorneys to make decisions about where you should live, the type of care you receive and day-to-matters such as your daily routine, diet, visitors and the social activities which you participate in. If social services are involved in decisions about where you may live and your care in the future, then it can be particularly helpful to have an attorney who is authorised to make decisions of this type for you. Your attorney can also give consent to or refuse medical treatment on your behalf if you give them this specific authority. This could include making a decision as to whether or not you receive life-sustaining treatment in certain circumstances, giving you peace of mind that someone you trust and is aware of your wishes, is acting on your behalf. If you choose not to give your health and welfare attorney this particular authority then decisions about life-sustaining treatment would be made by the doctors and other professionals overseeing your care at the time, in your best interests and subject to any Advance Decision you may have made.
You can create both types of LPA or just one type and not the other. Ensuring an LPA is in place will mean that decisions can be made quickly and by someone you trust if you ever lose capacity.
How do you go about putting a Lasting Power of Attorney in place?
A Lasting Power of Attorney is an extremely important document and requires careful preparation and sound legal advice. Download our complete Lasting Powers of Attorney pack containing comprehensive information and the relevant forms.
Who can be appointed as an attorney?
You can appoint a friend, a relative or a solicitor as your attorney and they must be over 18. As with deputyships, our trust corporation, the Thomson Snell & Passmore Trust Corporation can act as a professional attorney.
How many attorneys can I appoint?
You need to appoint at least one attorney and up to a maximum of four. If you choose more than one, you will need to decide whether you want your attorneys always to act together (a joint appointment) or whether they can also act separately (a joint and several appointment). A joint several appointment is the most flexible option. You can also choose to appoint a replacement attorney if your first choice is unable to act for any reason.
What are the attorneys duties?
Your attorney has formal legal duties and must follow the principles set out in the Mental Capacity Act 2005 and the Code of Practice. Your attorney must act in your best interests and take account of your wishes, feeling and beliefs.
You can apply conditions and restrictions on the use of the LPA and can also include guidance as to how you would expect your attorney to act.
How our Court of Protection solicitors can help with a Lasting Power of Attorney
- Advise on all aspects of a Lasting Power of Attorney, including the capacity required to make it, and the options available
- Deal with the registration process (without which a Lasting Power of Attorney cannot be used)
- Provide guidance to attorneys where they are involved in creating or acting under a Lasting Power of Attorney
- Manage objections and disputes over the appointment or conduct of attorneys
- Assist attorneys with applications to the Court of Protection for statutory wills, gifts, and the appointment of trustees.
Our Court of Protection expertise
- We have one of the largest specialist Court of Protection teams in the country, offering a personal and tailored service that few firms undertaking this work can provide
- Our specialist Court of Protection solicitors give straightforward practical advice and deal with matters sensitively
- Eddie Fardell and Brian Bacon are highly regarded experts, with many years of experience between them. Eddie is on the Court of Protection User Group and both he and Brian often receive direct referrals from solicitors, barristers and other professionals.
Call us to arrange an initial consultation. We will clearly explain the options and the processes involved with the Lasting Power of Attorney and the Court of Protection.