Lasting Powers of Attorney - Why You Should Have One

• October 2019
• Private Client

As part of lifetime planning, it is really important to make a Will but it is becoming equally important for people of all ages to also consider making Lasting Powers of Attorney (LPAs). A Will deals with your affairs following your death, but a Lasting Power of Attorney looks after you and your affairs whilst you are still alive whatever age you are.

Why you should consider making Lasting Powers of Attorney

If you become unable to look after your affairs either as a result of an accident or loss of mental capacity would someone you trust be able to step in and assist you? If you do not put in place an LPA and you lose capacity, then an application to the Court of Protection would have to be made to appoint a Deputy. This can be a lengthy and expensive process and can add further distress to your family and loved ones at an already difficult time.

By putting in place a legal document known as a Lasting Power of Attorney, you can appoint one person or several if you wish (known as an attorney), who can make decisions on your behalf. There are two types of LPA and these are explained below:

Property and Affairs – this allows your chosen attorney(s) to make decisions about your property and money. For example, they can pay bills, buy and sell property and collect income and benefits. Your attorney(s) can also make gifts that you would have made such as birthday or wedding presents or continue donations to your preferred charity.

Health and Welfare – this type of LPA is only used when you no longer have capacity to make decisions yourself. Under this LPA, an attorney can make decisions about what you eat and wear, the choice of care home and medical care. You can also allow your attorney(s) to make decisions about accepting or rejecting life sustaining treatment and give them guidance to help them understand your wishes. If you do not allow your attorney(s) to make such decisions regarding treatment, these decisions will be made by a health professional instead.

Your attorney(s) must act in your best interests and can consult with you and others who are interested in your well-being. You can provide additional guidance to your attorney(s) in the LPA and you can also place restrictions or conditions on what your attorney(s) can and cannot do.

How to set up an LPA

You need to chose whom you wish to appoint to act as your attorney or attorneys. You should choose someone you trust will carry out your wishes. An attorney must be over 18 and have full mental capacity. You can choose a relative, a friend or a professional but must check that they are happy to act as your attorney. If you are appointing more than one attorney you will need to decide how they can act, whether together, together and separately or together for some decisions and separately for others. You can also nominate a replacement to step in if an attorney is no longer able or willing to act and you do not have to appoint the same people to be attorneys for each type of LPA.

You will need to complete a separate form for each type of LPA. You, your attorney(s) and any replacement attorney(s) will need to sign the form and the signatures will need to be witnessed. The form will also need to be signed by someone known as a certificate provider who confirms that you have the mental capacity to make the LPA and that you have understood the form. This can be someone who has known you for more than two years or a professional such as a solicitor but cannot be a relative or attorney.

The LPA needs to be registered at the Office of the Public Guardian (OPG) before it can be used. There is an additional application form which must be completed and sent to the OPG along with a registration fee for each LPA. You will also need to choose someone to be notified when the application to register the LPA is made and if they have any concerns about the LPA being registered, they have the opportunity to raise them. Once the LPA is registered it can be used, although the attorney(s) appointed under the Health and Welfare LPA can only act if you no longer have capacity.

All the necessary forms can be obtained from the OPG and you can fill them in yourself. However, many people find it is easier and more reassuring to ask their solicitor to help with the paperwork, especially as they can also act as the certificate provider and attorney if needed.

Whatever your age we would strongly recommend you put in place both types of LPA to avoid complications in the future if you are no longer able to make decisions for yourself so that the people you choose are able to assist you.