Powers Of Attorney
You may have heard of Lasting Powers of Attorney.
But what are they – and do I need one?
A lasting power of attorney (LPA) is a legal document. In practical terms it lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.
This means you keep control over what happens to you if you have an accident or an illness and need help to make decisions. This is called lacking mental capacity.
You must be 18 or over and have mental capacity (the ability to make your own decisions) when you make your LPA.
You do not need to live in the UK or be a British citizen to make one.
Lasting Power of Attorney
A lasting power of attorney (LPA) is a vital legal document. Mostly people think of them as a tool for older people. However they can be needed for anyone whose family will suffer financially should they become ill through illness or accident.
With an LPA almost every financial matter can be dealt with. If you do not have one your finances could be frozen. This might mean having to go down the more expensive and lengthier route of getting a legal deputy or other measure.
People wrongly assume that joint bank accounts can be used while one person has lost capacity. This is incorrect. Even joint bank accounts can be frozen by the bank until capacity is regained or an attorney is created.
If the person affected loses capacity before an LPA is created, the costs and practicalities can be huge.
Types of Lasting Power of Attorney
There are 2 types of LPA:
- health and welfare;
- property and financial affairs.
You can choose to make one LPA or both.
This process applies to England and Wales. The processes in Scotland and Northern Ireland are different.
Once mental capacity is lost so is the chance to set up a Power of Attorney. Instead, members of their family have to apply to the Court of Protection to be appointed as their deputies.
How to make a lasting power of attorney
The pathway to make a LPA can seem scary but the steps are common.
- Firstly choose your attorney or attorneys;
- We then help you fill in the forms;
- We help you through the process of getting people to help;
- Then you register the LPA(s) with the Office of the Public Guardian.
You can cancel the LPA if it no longer needed or you want to make a new one.
Health and welfare lasting power of attorney
This LPA is taken out to help someone get power to make decisions about day to day matters such as:
- medical care issues;
- moving into a care home – if or when this step is needed;
- life-sustaining treatment;
- your daily routine, for example washing, dressing, eating.
The LPA only takes effect when you are no longer unable to make such decisions.
Property and financial affairs lasting power of attorney
This LPA is there to give the attorneys authority to make decisions about practical matters such as:
- managing a bank or building society account;
- collecting benefits or a pension;
- paying bills;
- selling your home.
This LPA can be used straight away once it is registered.
The LPA system is governed and watched over by The Office of the Public Guardian (OPG).
Choosing your attorney
This is the most important decision to make in going down the path of making LPA(s). You may select one or more people to be your attorney. If you appoint more than one, you must decide whether they can make decisions separately or together. We deal with this below.
Who can be your attorney?
Your attorney has to be 18 or over. This person can be a friend, relative, a professional person you know such as a solicitor. Most commonly it is your spouse or partner.
The person appointed must of course have the mental capacity to make their own decisions.
Your attorney need not live in the UK or be a British citizen. For practical purposes it is better if they live nearby or are in regular and close contact with you.
Practical issues when choosing an attorney
Some practical thoughts when selecting your attorney may include
- how well you know them and for how long;
- have you fallen out with them in the past?;
- how well they look after their own affairs, for example their finances;
- how happy they will be to make decisions for you – would they be willing?;
- if you trust them to make decisions in your best interests.
Someone with a Debt Relief Order or has been bankrupt cannot be an Attorney for a (LPA) for property and financial affairs.
If there’s more than one attorney
If you are appointing more than one person, you must decide how they will make decisions.
This can be:
- separately or together - sometimes called ‘jointly and severally’ - which means attorneys can make decisions on their own or with other attorneys
- together - sometimes called ‘jointly’ - which means all the attorneys have to agree on the decision
You can focus your LPA as you wish to let the attorneys make some decisions ‘jointly’, and others ‘jointly and severally’.
Attorneys who are appointed jointly must all agree or they cannot make the decision.
Being able to act severally means each attorney can use the Power of Attorney on their own. This is of much practical help if the attorneys live any distance away from each other.
Banks and building societies typically request that one of the joint attorneys to be identified as the ‘lead’. However unless you allow the attorney to act severally what they can actually do can be very limited.
The LPA is your document and you can strictly impose restrictions and conditions on your attorneys. However they have to be practical. The attorneys can rejected them if they are impractical.
You can nominate other people to replace your attorney(s) if at some point they cannot act on your behalf anymore. It is sensible to do this at the outset as this may avoid the need for a new LPA in the future if events change.
If you would like to look into this then contact or friendly helpful team on 0800 655 6550.
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