Lasting power of attorney solicitors
Decisions are a part of our daily lives. Some are simple, like choosing what to eat for dinner, while others are more significant, such as deciding whether to sell a house.
Every adult has the right to make their own decisions when they can, but sometimes they might need help, or someone may need to make decisions for them. This is where a Lasting Power of Attorney comes in.
At Lawhive, our network of lasting power of attorney experts can help you understand what it means to be a power of attorney and the possible consequences of appointing someone in this role.
For personalised help and advice, get a free case assessment from our legal assessment team today.
What is lasting power of attorney?
A lasting power of attorney (LPA) is a legal document that allows you (the 'donor') to choose one or more people (called 'attorneys') to help you in making decisions or make decisions for you.
If you can't make decisions for yourself or would prefer someone else to do it, a power of attorney is useful. Not least because no one can automatically take on this role, not even a spouse or civil partner.
You must formally choose who can make decisions for you in your lifetime with a power of attorney document.
Therefore, a lasting power of attorney is a good way to plan for the future. It means that if you can't make your own decisions, someone you trust can step in and make choices for you.
What happens if you don't have a lasting power of attorney?
If you lose the ability to make decisions due to illness or accident and haven't created a Lasting Power of Attorney (LPA), your loved ones must apply for a Deputyship Order.
If no suitable friend or family member is available, the Court of Protection can appoint a professional to make decisions in your best interest.
For this reason, it's important to set up an LPA while you're capable of doing so.
Waiting until it's needed may be too late and result in the need for lengthy, expensive court proceedings or someone who doesn't know you making decisions for you.
What can a lasting power of attorney do?
There are two kinds of lasting power of attorney:
Property and financial affairs attorneys;
Health and welfare attorneys.
Property and financial affairs attorneys
Property and financial affairs attorneys can handle decisions related to the donor's:
Money;
Taxes;
Bills;
Bank accounts;
Property;
Investments.
This includes selling or buying a property, and using the donor's money for their daily needs or to take care of their home.
Property and financial attorneys can start making decisions when the donor is still capable if the LPA says they can or the donor gives permission.
Otherwise, the right to make these kinds of decisions only starts when the donor no longer has mental capacity.
Health and welfare attorneys
Health and welfare attorneys can make decisions about the donor's:
Daily routine;
Medical care;
Living arrangements.
Unlike property and financial affairs attorneys, health and welfare attorneys can only begin making these kinds of decisions when the donor officially lacks mental capacity.
It's important to note that an attorney does not have the right to stop a donor from making decisions entirely, even if they disagree. Decisions should, where possible, be made in collaboration with the donor and it should be their wishes that are carried out, not those of the attorney.
What can't a lasting power of attorney do?
There are certain things attorneys can't do, these include:
Giving large financial gifts to people, even family or friends;
Managing discretionary funds with a fund manager;
Pay themselves a salary without prior agreement in the LPA;
Combine their finances with the donors;
Benefit personally from their position as an attorney;
Buy assets below market rate without Court of Protection approval;
Engage in tax planning without Court of Protection authorisation;
Restrict the freedom of the donor through decisions;
Change or update a donor's will without a specific order from the Court of Protection;
Make decisions when the donor still has mental capacity;
Make assumptions about the donor's capacity based on appearance, behaviour, age, or condition.
How does an LPA work?
An LPA makes sure there's someone you can trust on hand to make important decisions about your health, care, or finances if you are unable to express your wishes.
Your attorney can step in quickly when needed, without the need for an expensive and long-winded court process.
The biggest benefit of an LPA is that it is tailored completely to your preferences, giving you the peace of mind that your affairs will be handled according to what you want.
What is the difference between ordinary power of attorney and lasting power of attorney?
An ordinary power of attorney, also known as a general power of attorney, is a temporary arrangement. In this, someone with mental capacity appoints another person to manage their property or financial affairs. But, it becomes invalid if the person granting the power loses mental capacity.
On the other hand, a lasting power of attorney is specifically designed to empower someone you trust to make decisions on your behalf if you lose mental capacity in the future. Unlike an ordinary power of attorney, it remains effective even if mental capacity is lost.
What responsibilities does a lasting power of attorney have?
It is the responsibility of an attorney to:
Follow the instructions of the LPA;
Assist the donor in making their own decisions as far as possible;
Make decisions in the donor's best interests;
Respect the donor's human and civil rights.
An attorney can't delegate their role to someone else. What's more, LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used.
Who can I choose to be my lasting power of attorney?
You can choose anyone to be your lasting power of attorney as long as they have mental capacity and are:
18 or over;
Not on the Disclosure and Barring Service barred list;
Not an undischarged bankrupt or a person subject to a debt relief order (for a property and financial affairs LPA).
When choosing your attorney, it's important to pick someone you trust and who knows you well. Depending on what they'll be responsible for, you might also consider their ability to make financial decisions and handle money.
Attorneys are most commonly family members or close friends, but there are no hard or fast rules. Instead, it's important that you know and trust the person, and that they are comfortable in taking on the role.
You can also appoint more than one attorney if you wish, as well as substitute attorneys.
In your LPA you should set out whether your attorneys should make decisions together (jointly) or separately. Wills, trust, and probate solicitors can help you with the wording of this to ensure your wishes are clear.
Can a solicitor act be an attorney?
Yes, a professional, including a solicitor can act as your attorney under an LPA.
It is not uncommon for donors to appoint solicitors or accountants for property and financial affairs under an LPA given their expertise.
How do you make and register a lasting power of attorney?
To make a lasting power of attorney, you should:
Choose your attorney(s);
Fill in the forms to appoint your attorneys;
Register your LPA with the Office of the Public Guardian.
You, or someone on your behalf (like a family member, friend, or solicitor), can make an LPA either online or using paper forms.
All relevant forms must be printed out and signed by attorneys, witnesses, and a certificate provider. The LPA must also be registered for your attorney(s) to be able to make decisions for you.
What is a certificate provider?
A Certificate Provider for a lasting power of attorney is an unbiased person who confirms that a donor is creating the LPA willingly, without pressure, with a full understanding of the implications, and with the mental capacity to do so. A certificate provider is required for both Finance and Health and Care LPAs.
Who can be a witness or certificate provider for an LPA?
Witnesses and certificate providers should be aged 18 or over.
Attorneys can be witnesses to each other's signature but they can't witness you sign the LPA or sign as the certificate provider.
Certificate providers can be either:
Someone you have known for at least 2 years who is over 18 and unrelated to you; or
A professional like a GP, solicitor, social worker, or independent mental capacity advocate.
Certain people can't be certificate providers, including appointed or replacement attorneys, relatives of the donor or attorneys, partners of the donor or attorneys, and business partners.