Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document that enables you to appoint someone to manage your personal, property, financial and medical affairs.

You appoint someone known as an ‘attorney’ and you are the ‘donor’. Your attorney can decide for you if you’re unwilling or unable to make decisions on your behalf. It’s a common assumption that if one partner loses capacity, the other automatically gains decision-making authority in marriage or partnership. This isn’t the case; they need to obtain a Lasting Power of Attorney. Losing mental capacity before creating an LPA may necessitate complex legal proceedings such as deputyship.

There are two types of LPA: one covering health and welfare decisions, and the other for property and financial matters. A prescribed form must be used for applying, and to validate the LPA you must register it with the Public Guardianship Office. The registration process currently takes ten weeks for the Lasting Power of Attorney.

Property and Financial Affairs Lasting Power of Attorney

This LPA empowers you to assist the donor in financial decisions, including money, mortgages, tax, bills, pensions, property, and more. You must keep the donor’s interests separate from your own. Besides using their money to manage their affairs, you are permitted to spend money on gifts for special occasions and make charitable donations to charities that the donor would approve of. For most other things, you need to apply to the Court of Protection for approval.

Health and Welfare Lasting Power of Attorney

A Health and Welfare LPA permits the attorney to help the donor with matters relating to daily routine, where they live, whether it is safe for them, and any medical issues. In addition, the donor can grant permission to consent to surgery and make decisions relating to life-saving treatment. If the donor has made a living will in relation to medical treatment, this overrides any decisions made by attorneys.

Key aspects of both LPA types

There are a few key elements to remember when it comes to applying for a Lasting Power of Attorney.

  • Capacity. Creating a LPA is only possible if the donor has mental capacity. As mentioned earlier, losing capacity complicates matters, making it more time-consuming and expensive. Legal proceedings like deputyship may become necessary.
  • Correct registration. The right form must be used to apply for the LPA, and it must be registered with the Office of the Public Guardian.
  • Separation of interests. It is important that attorneys keep the interests of the donor separate from their own. Attorneys have a duty to act in the donor’s best interests; keeping these interests separate helps maintain the integrity of this duty. Secondly, separation provides transparency and protects the donor from financial abuse.
  • Scope. Each type of LPA has a scope within which decisions can be made. It is important to ensure any decisions remain within that scope.
  • Legal Advice. Seeking legal advice during the creation of an LPA is advisable to ensure the document accurately reflects the donor’s wishes and to navigate any potential issues.

How we can help

Appointing an attorney enables you to choose someone you trust to make decisions for you in the future. We can assist with providing initial advice, attending to the formalities involved, and, when appropriate, arranging for the power to be registered. We have many experienced solicitors and executives who handle Lasting Powers of Attorney on a daily basis: contact your local office to discuss your requirements.