About Lasting Powers of Attorney

What is a Lasting Power of Attorney?

A Lasting Power of Attorney ('LPA') is a legal document which authorises another person (the 'Attorney(s)') to act on your behalf.  The authority you give your Attorney(s) can be in relation to your Property and Financial Affairs and if you wish, your Health and Welfare.  

What makes an LPA special is that even if you become mentally incapable, it remains valid.  That means the Attorney can go on acting on your behalf and deal with your Property & Financial Affairs or your Health & Welfare, as becomes necessary.

What are the benefits of an LPA?

Irrespective of your age, there may come a time when you are unable to manage your affairs or decide on your welfare, this could be due to an accident, illness or simply through advancing years.  If this happens, you will need someone to look after your affairs and decisions for you and an LPA is the only way in which you can appoint someone to do so. 

What happens if I become incapable and have not signed an LPA?

The Court of Protection through the Office of the Public Guardian (OPG) can make decisions about your Property & Financial Affairs or your Health & Welfare either by making specific decisions (declarations) about particular matters or by appointing a 'Deputy' to act for you.  This process can take months and is only the start, even the routine administration of someone’s affairs under the Court of Protection is extremely time consuming and expensive and can be frustrating if a Deputy is granted only limited power.   

Who should I appoint as Attorney?

You are free to choose whoever you wish but obviously the Attorney should be someone whom you trust completely and who you know will act in your best interests.  He or she should also be methodical and business-like and should deal with your affairs promptly.  If you are appointing someone to make decisions about your Health & Welfare they should know you well and know your wishes and values.  You should probably give them written guidance.

Your immediate choice may be a close relative or friend.  Since that person may fall ill, have a full-time job or go away on holiday, it is useful to have two Attorneys and it is sometimes a good idea to appoint a professional as one of them, especially in relation to your Property & Financial Affairs.   

When can an LPA be used?

An LPA can be used as soon as it is registered with the OPG.  It is usual to register an LPA as soon as it is signed as a precaution in case you fall ill or have an accident.  The registration process can take about three months, so immediate registration avoids possible delay when the Power might need to be used.  Once this is done the document can be kept locked away in a safe the same way as a Will.  As well as being a safeguard against mental incapacity, an LPA also has the advantage that if a document ever has to be signed while you are away (e.g. on holiday), the Attorney under the LPA can sign it for you.  If a time comes when you no longer feel up to dealing with your personal business, the Attorney can, if you wish, start to act for you on a regular and permanent basis.  If you become mentally incapable, he or she will have to do so. 

Must my Attorney have the power from the moment I sign my LPA?

Not necessarily.  It is possible for you to provide that the LPA will not take effect unless and until your Attorney has reason to believe that you have become or are becoming incapable of managing your affairs or that you are unable to sign documents due to physical infirmity or disability.  If you wish to place conditions on the use of the LPA, you should consider carefully what might be necessary in order to satisfy the condition.  For example, a condition that the Power cannot be used until you have lost mental capacity could lead to the need for medical evidence which might take time and be costly.

What can the Attorney do?

The Attorney can do anything that you can do yourself provided you have authorised it.  For example, in relation to your property, your Attorney can pay bills, check bank statements, prepare tax returns, apply for benefit payments, collect your income, deal with your house, insure it, repair it or arrange for it to be sold.  In relation to your health and welfare an Attorney can decide whether you receive particular medical treatment or reside in a particular place.  It is wise to give written guidance to an Attorney dealing with health and welfare.  An Attorney cannot do anything you specifically do not authorise in the document.  Otherwise, the authority is general. 

What are the duties of an Attorney?

An Attorney’s most important duty is to act in your best interests at all times.  That makes it a good idea to choose an Attorney who will not be put in a situation where there is a conflict between your interests and his or her own. Attorneys must keep records so they will be able to give an account of their dealings if required to do so.  They must take reasonable care in dealing with your affairs; if, for example, they invest in stocks and shares, they should get advice from a stockbroker. 

To whom is the Attorney accountable?

While you are well, the Attorney is accountable to you.  If you become unable to manage your affairs, the Attorney will be accountable to the Court of Protection through the OPG which can order the Attorney to produce accounts.  Your Executors or the beneficiaries of your estate will be entitled to claim compensation from your Attorney if he or she is in breach of duties and this has caused a loss. 

Appointment

You can only appoint an Attorney to act under a Lasting Power by using a prescribed form.  The form requires you to specify someone or a number of people whom the OPG will notify when your Attorney registers the document. 

Before using it

In order for the OPG to be satisfied that you both had the mental capacity to appoint any Attorney, to prevent abuse, and to ensure you have understood the appointment, a Certificate on the document must be signed by a person of some standing who has known you for two years or who is qualified to give a Certificate, having met with you to discuss the appointment, e.g. your solicitor or your doctor.  The Attorney cannot sign the Certificate. 

Although the procedure for appointing Attorneys using a Lasting Power of Attorney will take a little time and effort, the potential saving in time and expense compared with having your affairs administered by the Court of Protection is well worth it. 

By appointing Attorneys using a Lasting Power of Attorney, your Property & Financial Affairs and Health & Welfare will be dealt with by trusted individuals chosen and appointed by you