Lasting Powers of Attorney

Lasting Powers of Attorney (LPAs) are legal documents that allow you to appoint one or more people to make decisions on your behalf in respect of financial affairs or health and welfare matters, in case you are unable to do so yourself in the future.

Having LPAs in place can provide peace of mind in knowing that you and your loved ones are protected should an accident or illness arise down the line.

Furthermore, having LPAs prepared in advance of any deterioration in mental capacity prevents the need for an application to the Court of Protection for a deputyship order – which is a costly and lengthy legal process. LPAs also allow you to set out your wishes regarding your finances and health and welfare, to ensure that they are followed so far as possible. This would not be possible under a deputyship order.

You may appoint one or more attorneys that are over the age of 18. Attorneys for Property and Financial Affairs LPAs must not be undischarged or interim bankrupt.

You should take great care when deciding who you appoint as your attorney(s). They must be absolutely trustworthy, have your best interests at heart, and possess the required skills to make the proposed decisions appropriately. For these reasons, most people appoint trusted family members or friends.

You may feel that it is best to appoint a professional attorney, such as a solicitor or accountant, who has the skills and experience to manage your affairs efficiently. This may also avoid any potential family disagreements. Professional attorneys will charge their normal professional fees for their time spent dealing with your affairs and can be appointed alongside friends/family members.

The responsibilities of your attorneys will vary depending on the specific terms that you have included in your LPAs. Widely, they will be responsible for your financial affairs and/or health and welfare, but you can instruct to restrict their powers as you wish. Your LPAs can also include non-legally binding preferences for your attorney(s) to follow, if you so wish.

If you lose mental capacity and do not have LPAs in place, it can be difficult for those close to you to deal with your affairs.

In the absence of a Property and Financial Affairs LPA, it may be necessary to apply to the Court of Protection for an appropriate order to make decisions on your behalf. This can be a costly, lengthy, and extensive process.

Anyone over the age of 18 who has the mental capacity to make their own decisions can make an LPA.

There are two types of Lasting Power of Attorney (LPA):

• A Property and Financial Affairs LPA. This gives your attorney(s) authority to deal with your property and finances. This LPA can be used by your attorneys whilst you still retain mental capacity, if you so specify.
• A Health and Welfare LPA. This allows your attorney(s) to make health and welfare decisions on your behalf, but only when you lack mental capacity to do so yourself.  This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment, or any further specific instructions you may include.

You can choose to make either or both types of LPA.

We would always advise receiving tailored advice on the effects and implications of making LPAs, given your specific personal circumstances and preferences. Taylor Walton will not usually prepare any type of LPA without first meeting you to take your specific instructions.

It is generally advisable to appoint more than one attorney. If more than one attorney is appointed, you will need to decide whether they will be appointed ‘jointly’ or ‘jointly and severally’. Joint appointments require that decisions must be made together, whereas joint and several appointments provide that your attorneys can act either together or separately. You can also direct that some important tasks, such as selling your property, must be made jointly.

It is important to think of the practicality of your appointment. If attorneys do not live together or nearby, it may be impractical to make a joint appointment. In any event, if an attorney were to die or lose mental capacity, the LPA can no longer be used. These issues would be avoided by a joint and several appointment, so such an appointment is generally preferable.

You can also appoint replacement attorneys to act in your original attorney(s)’ place if they become unable.

As a safeguard against abuse, an independent certificate provider must sign the LPA document to confirm that the person making the LPA fully understands the purpose and scope of the powers they are bestowing on their attorney(s) and that there is no fraud, undue pressure, or anything else that would prevent the LPA from being created.

Certificate providers must not be under the age of 18, a proposed attorney, related to the donor or attorney(s), an employee or business partner of the donor or attorney(s), or an employee/relative of a care home in which the donor lives.

Certificate providers can either be skill-based professionals (such as registered health care professionals, registered social workers, barristers/solicitors, or an independent mental capacity advocate) or knowledge-based professionals (someone who has known the donor personally for over 2 years).

Whoever you choose, they should demonstrate:

• An understanding of what is involved in making a LPA of either type and its effects;
• The skills to assess your understanding of the power and its consequences;
• That they can verify that you are not acting under the undue pressure of any other person, or that there are any other reasons that the power should not be created;
• A detailed knowledge of your financial and personal situation, to be satisfied that there is no fraud involved in the making of the power.

Any Enduring Powers of Attorney made before 1^st October 2007 are able to be used in respect of your property and financial affairs but not health and welfare matters.

If you wish to give someone authority to act as an attorney over your health and welfare, you will need to make a Health and Welfare LPA.