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

Lasting Powers of Attorney: A Guide


When we begin planning for our futures and considering things such as writing a will, you may begin to hear people discussing appointing a power of attorney, or a lasting power of attorney. It’s important to have somebody in your life that you can trust, in case something happens, and you find that you’re no longer able to make decisions for yourself. To ensure that you remain safe and cared for in case of the unexpected, most professionals in wills, trusts & tax law would recommend that you appoint a lasting power of attorney. But what does that mean?

In this article, we’ve consulted with our team of experts to compile everything you need to know about lasting powers of attorney; from the different types, to the process of appointing one, and what their responsibilities will be.

 

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 one or more individuals to make decisions in the best interest of a protected party. An LPA is typically used when the protected party no longer has mental capacity to make decisions in their best interest, which can arise following an accident or as a result of an illness such as dementia.

This document, which must be signed by all interested parties in the presence of a witness, gives the nominated person the rights and responsibility to make decisions on behalf of the protected person. However, the document is only valid once it has been registered with the Office of the Public Guardian.

In order to appoint an LPA, the protected person must be over 18 years of age, and able to make their own decisions at the time of signing (e.g. have mental capacity). This is why it’s important to appoint an LPA as early as possible. Life can be unpredictable, and if you find yourself with reduced mental capacity sue to a sudden accident or illness, it may be too late to appoint and LPA, which can leave you at risk. If you’d like to speak to a member of our legal team about arranging an LPA, you can visit our page about Arranging an LPA, or contact us directly.

 


 

Types of Lasting Power of Attorney

There are two types of lasting powers of attorney (LPA):

  1. Property and financial affairs;
  2. Personal welfare.

You can choose to make one type of LPA, or both. You can appoint the same individual to be both your property and financial affairs LPA, as well as your personal welfare LPA, but be aware that you will need to fill out two separate appointment documents. 

Just because an individual has been nominated to manage your financial affairs, this doesn’t give them the legal right to make decisions around your medical care as well, even if they have been nominated as your financial LPA. The best way to avoid confusion around this matter, is to clearly state who you would like to take on each of these responsibilities via the proper legal channels. 

As mentioned, each type of LPA comes with its own set of responsibilities, and decisions which can be made on a vulnerable person’s behalf.

Property and Financial Affairs LPA

A property and financial affairs LPA gives the person you have appointed to make decisions on your behalf (your “attorney”) the power to make decisions about money and property.

It is open to you to specify whether your attorney should have authority to make decisions on your behalf while you are still able to make decisions yourself (i.e. you have “mental capacity”), or only after you lose mental capacity.

A property and financial affairs LPA can include making decisions on the following issues:

  1. Buying and selling property, or arranging repairs to your property;
  2. Paying bills, including your mortgage or care fees;
  3. Claiming/ collecting benefits, income, inheritance or other entitlement on your behalf;
  4. Opening/closing bank accounts;
  5. Dealing with your tax affairs;
  6. Applying for entitlement to funding for NHS care, social care or adaptations to your property;
  7. Buying a vehicle or equipment you need;
  8. Investing money on your behalf.

Property and Financial Affairs LPAs are expected to act in the best financial interest of the individual they are making these decisions for. These responsibilities should be specified in the terms of the LPA, but the typical standard is that the Property and Financial Affairs LPA should:

  • Abide by any wishes which have been specified by the LPA;
  • Act in good faith, and not violate their fiduciary duty by using their position to enrich themselves;
  • Manage the individual’s assets and estate with due care and attention.

Personal welfare LPA

A personal welfare LPA can only be used once you are no longer able to make your own decisions (i.e. you have “lost mental capacity”). It can cover decisions about healthcare and personal welfare, including the following:

  1. Where you should live;
  2. Medical care/treatment you should receive;
  3. Your daily routine, including eating, washing, and dressing;
  4. Who you should have contact with;
  5. Whether you should have life-sustaining treatment in the event of you becoming seriously unwell. 

You can restrict/ specify the types of decisions your attorney can make on your behalf, or you can allow them to make all decisions on your behalf. An LPA can deal with temporary decisions, such as paying your bills while you are in the hospital, or help you to make long-term plans, such as where you will live in the future.

As with the Property and Financial Affairs LPA, those appointed as a personal welfare LPA have a legal responsibility to ensure the vulnerable person receives the appropriate care for their condition, is safe from harm, and that their dignity and wellbeing are maintained. 

If you need any assistance in setting up either a Property and Financial Affairs LPA, or a personal welfare LPA, you can contact our experienced Court of Protection team, who will be happy to assist.

 


 

Multiple LPAs: How decisions can be made

As well as appointing two different types of LPAs (e.g. a Property and Financial Affairs LPA, or a Personal Welfare LPA), individuals can also specify how many people they would like to appoint to each of these roles. For instance, a parent with two children may wish to grant them each lasting power of attorney, for both their financial affairs and wellbeing.

In cases like these, it’s vital that you specify how these decisions should be made, and whose approval will be needed to carry out a decision. For instance, if it seems it would be in the best interest of a vulnerable person to be moved from their home, to a well-appointed care facility, would it be down to just one, or both of the LPAs to agree?

In this section, we’ll discuss the different options around decision-making as an LPA. Specifically, whether decisions must all be made jointly (with each LPA’s approval), or severally (where only one LPA’s approval is required).

A Joint LPA

With a joint LPA, attorneys must make decisions unanimously. This 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 the protected person. 

Unanimous decisions are not always attainable, which restricts the attorney’s ability to make quick decisions in the vulnerable person’s best interest. For personal welfare attorneys in particular, a jointly LPA can pose a risk if a medical professional requires them to make an urgent decision as to a person’s health. However, they may be unable to do so in a timely manner due to having to consult another person. 

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 and Several LPA

An alternative to a Joint LPA, which may be more suitable for your family’s circumstances, is a joint and several LPA. This 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.

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

In some cases, a family may decide that, while certain decisions can be undertaken by one attorney, some more serious ones should be signed off by all relevant attorneys, before the decision is put into action.

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 the protected person are still decided by all attorneys, providing clarity and security that additional oversight is in place for their welfare.

 

Do I need to appoint a Lasting Power of Attorney?

If you are over 18 and have full mental capacity to appoint one, we always recommend clients to appoint a lasting power of attorney, both for their financial affairs and their personal welfare. Life can be unpredictable, and even the fittest and healthiest among us may find ourselves with diminished capacity to make decisions. Having a registered LPA in place means that you will be taken care of by a trusted person, no matter the circumstances.

It’s also important to keep your LPA up-to-date, similar to your will. It is common for younger people to appoint their parents as their LPA in their early adulthood, but as their parents get older, this may no longer be the most suitable arrangement. Married people will often nominate a spouse, with a second LPA in place in case their spouse also happens to lose capacity, or passes away at a similar time. 

If you feel you need advice or guidance around appointing a lasting power of attorney, a member of our team will be happy to help. Visit our contact page to get in touch.

 

Why you might choose to appoint a professional attorney

The role of an appointed attorney can sometimes be more challenging than expected. This could be due to factors such as the value and complexity of the vulnerable person’s estate, the extent of their medical condition, or their personal circumstances. In these instances, it may be in the person’s best interest to consider appointing a professional attorney.

A professional attorney can use their knowledge and experience to deal with challenging issues and attain results that are in the person’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 the vulnerable person can make a final, informed decision.

 

Lasting Power of Attorney: How We Can Help

At Anthony Gold, our Wills, Trusts and Tax team are on hand to answer any questions you may have about Lasting Powers of Attorney, from choosing the right person, to registering your LPA. Contact a member of the team via our website, and we’ll be in touch shortly to help with whatever you may need.

For more helpful articles and insights from our team, feel free to take a look at the Anthony Gold blog, or visit our site for our full list of legal services.

*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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