A lasting power of attorney (LPA) is a legal document that lets you appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and can’t make your own decisions.

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There are 2 types of Lasting Power Attorney:-

  1. Property and Financial Affairs: This will allow your attorneys to make decisions in relation to all matters relating to your day to day affairs, property, bank accounts etc.

  2. Health and Welfare: This will allow your attorneys to make decisions in relation to where you are to reside if you require care, and decisions in relation to life sustaining treatment. This means that your attorneys will be able to override Social Workers and Doctors in situations where they believe that the authority’s are not acting in what they think would be your best interests. It will cover any instance that occurs, rather than a “Living Will” which is valid but will only cover the situation set out within the same. So, for example you may set out that you do not wish to be resuscitated, should you have a stroke. If this circumstance does not occur, the Living Will will not take effect, however a Health and Welfare Lasting Power of Attorney would.

You that you do not have to put these in place immediately. They can be made at any time by you whilst you have the ability to understand the document. You also do not have to put both in place at one time. You may feel that a Power of Attorney for your Property and Finances is more important at present, and do not therefore wish to undertake a Health and Welfare Power of Attorney. Alternatively, you may feel it prudent to put in place all documents now, so that all matters are covered.

NOTE: There is a different process in Scotland and Northern Ireland.

b) Costs

It doesn’t cost the earth to put in place a Power of Attorney; once made, the intention is that they last for your lifetime.

At HTF Legal, we provide a fixed fee service so that there are no hidden extras.

Please click here to view our costs

c) For Businesses

Under the Mental Health (Discrimination) Act 2013 you Are no longer able to remove attorneys as directors or partners of a firm should they lack capacity. The knock on effect is that without an LPA for your business, key decisions will not be able to be made and this could result in financial issues, for example the payment of salaries etc.

It is therefore essential to consider how your business will work if you lack capacity for any reason. We can help you with your continuity planning to ensure that if the worst happens, your business will continue to run.

At HTF Legal we have a specialist team who can advise on all matters surrounding Lasting Powers of Attorney.

FAQs

+ How do I make a lasting power of attorney?

LPAs are set out in a very specific format.

You must be 18 or over and have mental capacity (the ability to make your own decisions) when you make your LPA

You will set out who you would like to be an Attorney or replacement Attorney.

+ Who should be my Attorney?

It is most common for your Attorney to be your husband, wife or partner, a relative, a friend, or a professional, for example a solicitor.

When choosing an attorney, think about:

  • how well they look after their own affairs, for example their finances
  • how well you know them
  • if you trust them to make decisions in your best interests
  • how happy they will be to make decisions for you

+ Do I need a separate LPA for my Business?

In short, yes. Under the Mental Health (Discrimination) Act 2013 you Are no longer able to remove attorneys as directors or partners of a firm should they lack capacity. The knock on effect is that without an LPA for your business, key decisions will not be able to be made and this could result in financial issues, for example the payment of salaries etc.

Your business attorney must be technically able to be your attorney; for example they must have similar qualifications to you. It is for this reason that careful drafting is required to protect your business for the future.

For further information please fill in our contact form below and one of our specialist team will be in touch to discuss this further.

+ What is the role of an Attorney?

PROPERTY AND FINANCIAL AFFAIRS

As a property and financial affairs attorney, you make (or help the donor make) decisions about things like money, tax and bills. As Attorney you will also be responsible for dealing with bank accounts, property and investments and pensions and benefits.

Discuss decisions that affect the donor’s living arrangements, medical care or daily routine with their health and welfare attorney, if they have one.

You must keep the donor’s finances separate from your own, unless you’ve already got something in both of your names like a joint bank account or you own a home together.

HEALTH AND WELFARE

As a health and welfare attorney, you make decisions about things like someone’s daily routine, where they may live and their medical care, Your role tends to overlap with that of the Property and Affairs Attorney, as you may have to spend the donor’s money on things such as paying for extra support so the donor can go out more, or chiropody and hairdressing

You must ask for money from the person in charge of the donor’s funds.

Apply for a one-off decision

You may need to apply for a one-off decision from the Court of Protection to make a decision about a medical treatment if there is a dispute between yourselves and medical staff and family about what is best for the Donor.

+ Can I make gifts from someone’s monies if I am an Attorney?

Unless the LPA states otherwise, you can spend money on routine gifts that the Donor made whilst they had capacity to do so. These may be birthday or anniversary gifts, or routine gifts to charities by direct debit etc. You must check that the donor can afford the gift or donation, even if they’ve spent money on these types of things before. For example, you can’t donate their money if that would mean they couldn’t afford their care costs.

You must apply to the Court of Protection for any other type of gift or donation, even if the donor has given them before.

+ What if I find that there is abuse of a Vulnerable Person?

You can contact the Office of the Public Guardian if you have concerns about an attorney or a deputy, for example the misuse of money or decisions that aren’t in the best interests of the person they’re responsible for.

Office of the Public Guardian:
Telephone: 0115 934 2777
Monday to Friday, 9am to 5pm
Wednesday, 10am to 5pm
Office of the Public Guardian
PO Box 16185
Birmingham
B2 2WH

+ Can I prevent an LPA being registered?

Yes. You can also object to an LPA being registered, however there are specific grounds for doing so such as

  • The donor or attorney is bankrupt or interim bankrupt (for property and affairs LPAs only)
  • The attorney is a trust corporation and is wound up or dissolved (for property and affairs LPAs only)
  • The donor or attorney has died
  • There has been a dissolution or annulment of a marriage or civil partnership between the donor and attorney (unless the LPA stated that this eventuality would not affect the LPA)
  • The attorney(s) lack the capacity to be an attorney under the LPA
  • The attorney(s) have disclaimed their appointment (i.e. no longer wish to be an attorney)
  • The LPA isn't legally valid (e.g. they don't think that the donor had the mental capacity to make an LPA)
  • The power created by the LPA no longer exists, e.g. the donor revoked it at a time when he/she had capacity to do so
  • Fraud or undue pressure was used to get the donor to make the power of attorney
  • The attorney is acting (or intends to act) in a way that is beyond their authority or would not be in the donor's best interests

+ What is The Mental Capacity Act 2005?

Any Attorney when signing an LPA is agreeing to make decisions in respect of your affairs in accordance with the Mental Capacity Act 2005 and its Code of Practice.

Attorneys must have regard to these documents, available from www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act

Your Attorneys must follow the principles of the Mental Capacity Act:-

  1. Your Attorneys must assume that you can make your own decisions unless they establish that you cannot do so.
  2. Your Attorneys must help you to make as many of your own decisions as you can. They must take all practicable steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
  3. Your Attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
  4. Your Attorneys must act and make decisions in your best interests when you are unable to make a decision.
  5. Before your Attorneys make a decision or act for you, they must consider whether they can make a decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.