Lasting Power of Attorney (LPA)
Having a Lasting Power of Attorney (LPA) in place can be just as important as having a Will. It gives you the reassurance of knowing your wishes will be respected if at any time in the future you become unable to make decisions for yourself.
There may be a time when you can no longer share or communicate what you think, or you cannot make decisions over your financial or legal affairs. If you lose the ability to manage your own affairs, a partner or family member cannot automatically deal with things on your behalf. If you are affected by dementia you will need to consider the legal and financial implications for you and your family.
Who should I choose to act as my LPA Attorney/s?
You should choose a person or people with whom you have a settled and easy relationship. The person or people chosen must be absolutely trustworthy and possess appropriate skills to make decisions on your behalf. They must be over 18 and not be an undischarged or interim bankrupt person, if you are making a Property and Affairs Power.
How many LPA Attorneys should I appoint?
You can appoint one Attorney but it is advisable to appoint more than one or a replacement, to lessen the chance of abuse and ensure continuity in case your chosen Attorney cannot act. If you choose more than one, it is essential that those people get on with each other.
How should my LPA Attorneys act?
If you have more than one Attorney, you will need to decide whether you want them to act:
Jointly - always together - If they are appointed together, they must always sign together and agree which can be difficult in practice. Additionally if one dies, loses mental capacity or becomes bankrupt (if the Power is a Financial Power), the document can no longer be used.
Together and independently – they can act either together or entirely independently of each other. This works well when the Attorneys do not live near to each other or, if one were to retire or die, then the other Attorney could still act.
A combination - you decide which decisions they have to make together and which independently.
How do the LPA Attorneys know what to do?
It is important that your Attorneys take the time to consider the Mental Capacity Act 2005 Code of Practice and how this impacts on their role. Attorneys can be investigated by the Office of the Public Guardian if there are concerns that they are mismanaging or abusing their position and in some cases the Court of Protection may step in to appoint a Deputy in their place. Click here to visit our dedicated webpage on Court of Protection Deputyships
What if my circumstances change?
You should consider appointing a replacement Attorney to provide for a situation that your chosen Attorney is not able or is unwilling to act. If you appoint your spouse or civil partner, be aware that dissolution of the marriage or civil partnership terminates the appointment of your spouse/civil partner, unless you have indicated otherwise.
Do you wish to place any restrictions on the Attorneys you are appointing, or give them guidance?
If you are making a Lasting Power of Attorney for Property and Affairs you may wish to consider restricting the operation of the Power until you have lost mental capacity.
With a Lasting Power of Attorney for Health and Welfare there is no need to do this as your Attorney is only ever authorised to make decisions you are incapable of making.
You do not have to restrict the Attorneys as such restriction will be legally binding and could cause difficulties. If you do, you must be careful that the document can still work.
You may feel it would be helpful to give your Attorneys some idea of the way in which, ideally, you would like your finances dealt with if you no longer have capacity. In relation to a Health and Welfare Lasting Power of Attorney you may want, for example, to indicate where you would want to live and what treatments you may prefer not to have if you lose mental capacity.
Who should I tell I am making a Lasting Power of Attorney?
You should talk to your proposed Attorneys about them taking on that role on your behalf and check they are happy to do this. You should make sure they are able and willing to act together.
You should tell your trusted friends and family members so they know you have taken legal advice. If these are the people you are notifying when the document is registered, you should make sure that they know and you will need to supply their full name and address.
Who will be the certificate provider?
Someone must act as your certificate provider. Without this the Power cannot be registered or used. This is normally your legal professional or GP as they are competent to make the judgements necessary to give the certificate.
If we are not appointed as Attorneys, we can act as Certificate Provider but, in order to fulfil the requirements of the document itself, we will need to see you alone at some point, even though you are with your spouse/civil partner/partner.
If we agree to act as Attorney, we cannot act in the role of Certificate Provider, but will supply you with a list of appropriately qualified local solicitors any one of whom could fulfil this role or we will liaise with your GP where appropriate and with your consent.
To find out more or discuss your individual requirements in further detail, our dedicated Lasting Power of Attorney solicitors will be delighted to help.