Published on July 26th, 2020
Our specialist private client lawyer Catherine Barrett has over twenty-five years’ experience in dealing with powers of attorney and answers some of yourmost common questions about Lasting Powers of Attorney (LPA).
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (commonly referred to as an LPA) is a legal document that allows you (the donor) to appoints a trusted person or persons (known as the ‘attorney’) to help you make decision or make decisions for you if you are no longer able to make them yourself. This assistance might be needed if you are ill, injured or simply as a result of old age as is normally the case. There are twodifferent types of LPA:
1. Property & Financial Affairs, which allows your attorney to handle your money and your property. This may allow your attorney to manage your bank accounts, pay bills and even sell propertythat you own.
2. Health & Welfare, which allows you to choose an attorney or attorneys to make decisions about your medical treatment, day-to-day care and where you should live.
Your power of attorney cannot be used until it is registered with the Office of the Public Guardianwhich will ensure that it has been prepared properly. I recommend almost always to register the LPA straight away so that it is ready as soon as it is required.
When Does a Lasting Power of Attorney Take Effect?
It depends on whether the LPA relates to your finances or health and welfare. A health and welfare LPA will only take effect once you have lost mental capacity and are no longer able to make decisionsfor yourself whereas a property and financial affairs LPA can take effect before you lose the ability to make your own decisions, although this is your choice. If you don’t consent to this then your property and financial affairs LPA will take effect once you have lost mental capacity (just like a health and welfare LPA).
When should I make my Lasting Power of Attorney?
The sooner the better. It is a good idea to think about preparing an LPA at the earliest opportunity even if you are young and healthy. The reason for this is that can only make an LPA while you have mental capacity. One the biggest problems I find is that many people (wrongly) believe that they don’t have to put an LPA in place and that they wait until they have lost mental capacity.
You most likely won’t need it for a long time- if not at all- however if something unanticipated were to happen (such as an accident) then having an LPA in place will be one less thing for your loved ones to worry about.
Can I cancel my Lasting Power of Attorney?
If your circumstances change in the future and you change your mind (for example as to who your attorneys should be) you can always revoke the power of attorney while you have capacity and make a new one.
This needs to be done by way of formal revocation and not by simply altering the original LPA. It is important to note that if your attorney is your spouse or civil partner then a divorce, dissolution or annulment of the marriage or civil partnership will end their appointment automatically as a matter of law unless it has been expressly stated otherwise in the LPA.
Who should be my attorney?
Anyone can be an attorney, provided that they are over 18 and the attorney does not require any qualification. The most important thing is that the attorney is someone that you trust implicitly. The majority of my clients chose their spouse, partner,or a close friend or relative. Being an attorney is a big responsibility and if you do not want to burden someone you love you can appoint a trusted professional such as your lawyer or accountant. It is important to remember that a professional will likely charge for acting as your attorney.
You may also appoint more than one attorney (and you can decide whether they can take decisions separately or whether they must take decisions jointly) and you can even appoint replacement attorneys; in the event that your initial choice is no longer available.
Can an attorney just do what they like with my money and property?
You can provide your attorney with instructions as to your finances and property should be managed. For example, it may be the case that you feel very strongly that your home should not be sold. There are also rules which apply to all attorneys about how they should behave. Attorneys are not permitted to spend your money on themselves and there are very strict limits about how much of your property they can give away as gifts to third parties (without the consent of the Court of Protection). If an attorney does not follow these rules, then the Court of Protection has the power to remove them as your attorney and order them to pay your money back to you.
What happens if I lose capacity but I haven’t made a Lasting Power of Attorney?
In this scenario someone will need to apply to the Court of Protection to be your deputy. We try to avoid this as it is expensive and there are more responsibilities for a deputy than a attorney so it is much more of a burden. Deputies must submit annual reports and accounts to the court.
Whilst the court will listen to your wishes as to who you would like to be your deputy it is not bound by them and may appoint someone else. This is why having a Lasting Power of Attorney is important as you are able to make these decisions for yourself at an early stage.
At Houldsworth Solicitors we can advise you fully about Lasting Powers of Attorney. If you would like a free initial meeting at our offices (or at your home if mobility is an issue) please contact Catherine Barrett on 01200 422152 or e-mail firstname.lastname@example.org
IMPORTANT NOTICE: The information provided in our articles reflects only a narrative of some elements to consider on the topic. The articles do not contain considered legal advice and should not be relied upon as advice. If you are interested in obtaining advice, please contact one of our lawyers who will be happy and able to advise you on your own particular circumstances.