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Published On: February 24, 2021 | Blog | 0 comments

Lasting Powers of Attorney

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (referred to as a LPA) is a legal document, recognised by the Court, appointing an individual(s) to make decisions in the best interest of a protected party (P). An LPA is typically used when P no longer has mental capacity, which can arise following an accident or as a result of an illness such as dementia.

Consequently, appointing a trusted person within the LPA document before P loses capacity, gives P control over who makes decisions on their behalf under the remit of either a Property and Affairs LPA and/or a Health and Welfare LPA.  The appointment of individuals under an LPA can occur as follows:-

A Joint LPA:

Attorneys must make decisions unanimously, which ensures greater scrutiny and the assurance that each decision is thoroughly thought through due to the additional oversight. However, this can be cumbersome when there is a conflict regarding the best interest of P, as unanimous decisions are not always attainable which restricts the attorney’s ability to make quick decisions in P’s best interest. Subsequently, since all attorneys are required to be consulted in a joint LPA, if one dies, retires or loses their capacity, the LPA will become void, thus leaving P unprotected and at risk; unless a replacement Attorney has been appointed within the LPA to take account for such a scenario.

A Joint for Some Decisions and Joint and Severally for Others LPA:

A LPA formed under this structure unambiguously clarifies the areas where all the attorneys must decide together, such as selling assets, deciding medical treatment and making large purchases. Meanwhile, decisions falling outside these areas are left to be made severally by the attorneys, therefore without the requirement for joint involvement the day to day decisions made under the remit of the LPA are decided swiftly. This ensures that issues considered essential to P are still decided by all attorneys, providing clarity and security that additional oversight is in place for P.

A Joint and Several LPA:

Structured in this way the LPA accommodates for attorneys making decisions together or alone, therefore it is not always a pre-requirement that unanimous decisions are made. This structure means that the LPA is less restrictive in its application, but since all appointees can be involved it retains a high level of scrutiny and oversight in the decision-making process. Furthermore, this LPA’s structure ensures its existence continues when one attorney dies, retires or loses capacity, therefore the protected person can continue to be managed effectively.

A Joint and Several LPA is the most common LPA, as it balances the decision-making process between deputies without restriction and mitigates the risk factor of it becoming void if an attorney can no longer fulfil their role.

Why Might you Want to Choose a Professional Attorney?

The role of an appointed attorney can sometimes be more challenging than expected due to factors such as the value and complexity of P’s estate, the extent of their medical condition and personal circumstances. In these instances, it may be in P’s best interest to consider appointing a professional attorney, who can use their knowledge and experience to deal with challenging issues and attain results that are in P’s best interest. Consequently, professional attorneys are well equipped to deal with challenging issues and are transparent in their decision making process, this ensures that those who are concerned about P can make a final informed decision.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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