FAQs: Lasting Powers of Attorney

1. What is a Lasting Power of Attorney?
2. Why do you need a Lasting Power of Attorney (LPA) when you have a Will?
3. What happens if you don’t have a Lasting Power of Attorney?
4. You have a Living Will / Advance Directive so do you need a Lasting Power of Attorney for your health and welfare?
5. Who can, and should you, appoint as your Attorney(s)?
6. What happens if you change your mind after you have made a Lasting Power of Attorney?
7. Why should you seek legal advice about making a Lasting Power of Attorney?

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a document which allows you to formally appoint someone to look after your affairs if you are physically or mentally unable to do this yourself. There are two separate types of LPA: one for financial decisions and one for health and welfare decisions.

This enables your Attorney, who could be your partner, adult child, a friend or a professional, to make decisions on your behalf. Family members do not have automatic decision-making authority as your next of kin. If there is no LPA in place, a formal best interest decision-making process would have to be followed under the Mental Capacity Act 2005.

Why do you need a Lasting Power of Attorney when you have a Will?

A Lasting Power of Attorney (LPA) is there to be used during your lifetime in case you need your Attorney to make decisions for you. The LPA ceases to be effective upon death. A Will only takes effect upon your death and its content has no bearing on your financial preferences if you lose capacity to make decisions during your lifetime.

What happens if you don’t have a Lasting Power of Attorney?

If you don’t have a Lasting Power of Attorney in place before you lose mental capacity, then someone will need to apply to the Court of Protection to be appointed to act as a Deputy to manage your Property and Finances. Sometimes the Court decides to appoint a Professional Deputy, usually a solicitor or an accountant.

Deputy Health and Welfare appointments are rarely made by the Court. If you did not make an Lasting Power of Attorney for Health and Welfare then decisions will generally be made via a best interest process if you are unable to make the decision yourself. If there is a disagreement over what is in your best interests then an application can be made to the Court of Protection for the Court to make the decision on your behalf.

An application to the Court of Protection is not only costly but can take a long time to conclude.

You have a Living Will / Advance Directive so do you need a Lasting Power of Attorney for your health and welfare?

A Living Will / Advance Directive only covers certain specific situations, such as decisions about life sustaining treatment. A Lasting Power of Attorney for Health and Welfare can be drafted so that it covers all health and welfare matters and decisions, such as where you live and who you see, should you be unable to decide for yourself in the future.

Who can, and should, you appoint as yourAttorney(s)?

It is entirely up to you who you appoint to act on your behalf, however, it must be someone you trust as they may ultimately end up with full control over your finances and care.

You can appoint between one and four Attorneys. When appointing more than one Attorney you have the option of appointing them jointly (so that they must all act together) or jointly and severally (so they can either act together or separately). However, you must be careful when appointing Attorneys jointly rather than jointly and severally, as the death of an Attorney or disagreement between Attorneys can render the Lasting Power of Attorney document useless.

What happens if you change your mind after you have made a Lasting Power of Attorney?

Whilst you retain mental capacity you can revoke an existing Lasting Power of Attorney and make a new one as many times as you wish. This is subject to paying a registration fee to the Office of the Public Guardian for each new document.

Why should you seek legal advice about making a Lasting Power of Attorney?

It is important to ensure that your Lasting Power of Attorney (LPA) accurately reflects your wishes, and that it is deemed workable in case any issues arise. If a LPA is deemed unworkable by the Office of the Public Guardian (OPG) then it may be rejected. The OPG estimate that 15% of all LPAs are rejected because of fundamental mistakes. Seeking expert advice from a solicitor can ensure that no problems arise later down the line.

Get in touch with our Community Care Law Team for expert advice on making a Lasting Power of Attorney – contact us today on 01273 609911, or email info@ms-solicitors.co.uk.