Lasting Powers of Attorney: A Simple Guide

A Power of Attorney is a legal document whereby a person appoints another person to act on their behalf and even make decisions for them. There are several different types of Power of Attorney, each with different attributes but the type examined here is the Lasting Power of Attorney (“LPA”).

What is a Lasting Power of Attorney?

An LPA is a specific type of power of attorney that allows a person (known as “the donor”) to appoint another person or more than one person to make decisions on the donor’s behalf in the event that the donor is unable to make or communicate their own wishes or decisions due to accident, illness, infirmity or dementia. This is known as ‘lacking mental capacity’. The appointed person is known as “the attorney”. The lasting power of attorney legislation is set out in the Mental Capacity Act 2005.

There are two forms of LPA, one for health and welfare and another for property and financial affairs. The health and welfare LPA gives the attorney the authority to make decisions about such matters as the donor’s health care, living conditions, diet and medical care and procedures. The donor can also choose to grant their attorney the power to make decisions about whether to accept or decline life-sustaining treatment being administered to the donor. The property and financial affairs LPA empowers the attorney to make decisions about the donor’s property, assets, income, pensions and bills as well as any of the donor’s business interests or affairs.

The donor may appoint the same attorney(s) for both health and welfare and property and financial affairs or separate attorney(s) for each. It really is entirely up to the donor. The donor can set out express instructions or wishes in the LPA documents and any guidance for their attorney(s). If more than one attorney has been appointed, then the donor must select whether they can act jointly and severally (each attorney can act independently) or whether they must act jointly, i.e., they cannot act individually and must make all decisions together.

The LPAs do not take effect until they have been registered with the Office of the Public Guardian (‘OPG’). The LPAs can be registered as soon as they are created or delayed until such time as they are required. The registration process takes approximately 6-8 weeks. Even following registration, the donor can cancel an LPA at any time provided they still have mental capacity.

When to consider making a Lasting Power of Attorney

It is widely assumed that married couples have legal authority to make decisions for each other, but this is quite untrue. It is equally untrue for parents of adult children. There is simply no automatic right for spouses or family members that empower them to make decisions for a spouse, child or sibling who, for whatever reason, is not in a position to make their own decisions.

Unmarried couples are in an even more parlous position vis a vis each other. The law simply does not recognise any relationship between unmarried couples and the term “common law wife/husband” is fiction. If your unmarried partner loses his or her mental capacity then, as far as the law is concerned, you may as well be a stranger.

So, really anyone and everyone should consider making LPAs. You don’t have to be elderly or infirm to make LPAs. Disaster can strike without warning and, without valid LPAs in place, your partner, spouse, loved ones or friends will have to make an application to the Court of Protection for authorisation to deal with your affairs and make decisions for you. This is a much more complicated, slow and expensive procedure.

Should I make a Lasting Power of Attorney?

In most cases, the answer is yes. However, a lot depends upon your personal, professional and domestic circumstances. Generally, anyone aged 50 or over should seriously consider making an LPA sooner rather than later, regardless of their state of health. Serious illnesses often strike without warning and, if dementia begins to set in, it then becomes impossible to make an LPA because you need full mental capacity to do so.

Making an LPA is the only way you can make decisions for your future treatment and about your own affairs in advance. If, for example, you want your unmarried partner to make decisions about your medical treatment, then the only way to ensure this is by appointing them as your attorney. Otherwise, your next-of-kin will be consulted and that may not be who or what you want.

Certainly, if you are involved in running any sort of business or enterprise, then you should consider making an LPA as soon as possible as an essential part of succession planning.

Who should I appoint as attorney(s)?

You are free to choose anyone to act as your attorney. It could be your spouse, your child, another family member, a friend or even a professional adviser. The most important thing is that you must appoint a person or people whom you trust implicitly to act in your best interests and who know you well enough to make decisions on your behalf that you would approve of.

You can appoint multiple attorneys if you wish but, if you decide to appoint a professional attorney then do bear in mind that they will want to charge for their services, and you need to factor this into the lasting power of attorney costs. It is also good practice to consult with your choice of attorney beforehand to ensure that that person is able to and willing to take on the responsibilities.

If you want to make an LPA, then it is advisable to consult a solicitor. Lasting Power of Attorney forms and the prescribed procedures are exacting and mistakes can lead to the LPA being rejected by the OPG as invalid.

For further information and trusted legal advice regarding Lasting Powers of Attorney, get in touch with our team at Carlsons Solicitors.