Lasting Powers of Attorney are the most important documents that you will ever need

Powers of attorney enable you to appoint people to be your attorneys and make decisions on your behalf.

There are different types of Powers of Attorney (POA) for a range of different circumstances.

The following are examples of common types of POA that can be used whilst you have mental capacity.

General powers of attorney, also known as ordinary powers of attorney – enable you to appoint persons to look after your property and assets for a limited period. These are commonly used if you are going away on business or holiday, having medical treatment, or simply not being around in person to make the decisions yourself for a short time.

Trustee powers of attorney – similar to general powers of attorney, but for trustees and do include limitations as to what tasks/ decisions can be delegated. These must be consistent with the previsions of the Trust Deed.

Business powers of attorney – similar to general powers of attorney, but for business owners, extending to their business interests only. These do include limitations as to what tasks/ decisions can be delegated and must be consistent with the Company’s governing documents.

Lasting Powers of Attorney (LPA’s)

Lasting Powers of Attorney are legal documents that appoint a person or persons (attorney’s) of your choosing to look after your affairs, on your behalf, if you are unable to do so yourself, usually through a lack of mental incapacity.

Whilst often believed to be for the elderly, LPAs are the most important documents that every adult should have.

There are two types of LPA’s:

  • Property & Financial Affairs; and
  • Health & Welfare.

Property & Financial Affairs LPA

With a Property Financial Affairs LPA, you appoint your attorneys to make decisions about your property and finances. This includes accessing your banks and investments, selling your home, paying your bills, dealing with your pensions or benefits, and sorting out your taxes.

Your attorneys can only deal with your assets for your benefit and are governed by the ‘best interests’ principle under the Mental Capacity Act.

It is important to understand that an LPA is different from your Will. It only operates during your lifetime and does not transfer ownership of your assets to your attorneys. Instead, it allows them to manage your affairs on your behalf.

If you appoint more than one attorney, you can appoint them to act in different ways.

Your LPA can include restrictions and preferences.

You can also elect for your Property & Financial Affairs LPA to be used by your attorneys with your consent, whilst you still have mental capacity. The latter is ideal as we age and wish for our loved ones to assist with our everyday finances.

Health & Welfare LPA

With a Health & Welfare LPA, you appoint your attorneys to make decisions about matters concerning your health and welfare. This includes decisions such as where you live and the type of care and medical treatment you receive.

Due to the decisions relating to your personal welfare and being intrusive in nature, your attorneys can only act when you lack the mental capacity to make the decisions yourself.

Similar to the Property & Financial Affairs LPA, if you appoint more than one attorney, you can appoint them to act in different ways, and you can include restrictions and preferences.

Before an LPA can be used, it must be registered with the Office of the Public Guardian.

Putting LPA’s in place is a necessary step for every adult to provide the peace of mind that, in the event of an accident, sudden illness, or age-related condition, the people that you have decided are ready to step in and make those important decisions on your behalf.

Should they ever be required, these documents are invaluable, and I regard them as a form of insurance—we insure our homes against fire in the hope that such protection will never be needed.

FAQ’s

In order to make an LPA, you must have the required mental capacity to do so. If you have the capacity, the LPA can be drawn up. It will be signed by you, your Certificate Provider and your attorneys before being sent to the Court for registration. The Court can take anywhere up to 20 weeks to register the LPA. The LPA cannot be used until it is registered and, therefore, will not be available in an emergency situation.

If you lack mental capacity, then you are not able to make one, and someone will need to apply to the Court of Protection for a deputyship order. The Court will decide who is appointed as your deputy. The application for a deputyship order can be extremely expensive and cause long delays. This is especially true if any application is contested. The Court can also make the decision to appoint a solicitor to be your deputy instead of your family.

This is not often the case. Whilst some medical professionals and social services may liaise with your spouse, or children, without legal authority in the form of an LPA or a Deputyship Order, your family will be unable to make certain decisions. They will not be able to request your medical records and may not have the final say regarding medical treatment.

Certainly, they will not be able to manage your property and finances for you.

If you no longer wish for any of your attorneys to act for you, you can either revoke your entire LPA and prepare a new one or, in some circumstances, do a partial revocation to remove an attorney. You can only appoint new attorneys by preparing a new LPA. You must have the mental capacity to revoke an LPA or do a new one.

Getting Professional Advice

Because a Power of Attorney gives another person significant legal authority, it is important that the document is prepared correctly and accurately reflects your wishes. Taking professional advice helps ensure it is valid, appropriate, and tailored to your circumstances.

Schedule appointment

If you would like a no obligation, informal discussion about Powers of Attorney, please get in touch