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Lasting powers of attorney: What are they and why are they important?

| Duncan & Toplis | 19 June 2024

There has been an increased level of attention on lasting powers of attorney in recent months, largely due to more mainstream coverage such as on ‘The Martin Lewis Money Show’. So why are they so important?

Firstly, what is a lasting power of attorney?

A lasting power of attorney (LPA) is a legal document that enables you (the ‘donor’) to appoint an individual or individuals that you trust to make decisions on your behalf (the ‘attorney’) should you be unable to do so yourself, for example, as a result of ill health or mental capacity.

How many types of lasting power of attorney are there?

There are two types of LPA – one covers issues surrounding health and welfare, and the other covers property and finance. You can choose whether you wish to create one or both types. It is also possible to create two property and finance documents if you wish to appoint different attorneys for different financial reasons for example one for your personal finances, and one for your business interests.

The ‘health and welfare’ LPA can be created at any time but can only be used once the donor has lost their capacity and covers issues such as liaising with their medical and care staff, making decisions around their medical treatment, including life-sustaining treatment, end of life care and day to day decisions around the donor’s welfare and routine. The property and finance LPA can be used when the donor has lost their capacity but also when the donor consents to the attorneys acting on their behalf e.g. if they are in hospital for a long period and need assistance with ensuring their bills are paid. This LPA can cover issues such as paying bills, dealing with bank accounts and house sales.

Who should make a lasting power of attorney?

There is a common misconception that LPAs are only something that the elderly should consider. The reality is however that anyone of any age can have an accident or be struck down by illness that can leave them temporarily or permanently unable to make their own decisions. Anybody aged 18 or over is able to create a lasting power of attorney, providing they have full mental capacity at the time of making the document.

Who should I appoint as my attorney?

Your attorney(s) should be someone who you trust to make decisions on your behalf and who you believe would know what your wishes would be in the event of mental incapacity. Most people will choose family members and/or close friends to be their attorney(s). It is important to note that the attorneys have a duty to act in your best interests and whilst you have mental capacity, they cannot stop you from making your own decisions.

It is possible to appoint more than one attorney to a maximum of four. If you do appoint more than one attorney, you can choose whether you appoint them to always act together (jointly) or to act together or separately (jointly and severally).

It is also possible to appoint a replacement attorney(s). This would be an individual(s) who would only become an attorney if none of your appointed attorneys are able to act for any reason (e.g. they have passed away or have themselves lost mental capacity).

What forms are required for a lasting power of attorney?

There is one form to complete for each type of power of attorney. LP1F for property and finance, and LP1H for heath and welfare. Within these forms you must confirm your details, your attorney and replacement attorney details. It is also possible to include specific instructions and preferences to help guide your attorneys. However, we can complete all of the necessary forms on your behalf.

Should I register my lasting power of attorney?

It is important to note that an LPA can only be used by the attorneys if it is registered. There is an £82 registration fee per document which is payable to the Office of the Public Guardian who look after all matters relating to Lasting Powers of Attorney. The registration process is currently taking up to 16 weeks to register and therefore we recommend that the documents are sent for registration as soon as they are fully signed otherwise, if the donor is suddenly in a life changing accident for example, the attorneys cannot act in their capacity until the document is registered.

What happens if you do not have a lasting power of attorney?

It is another common misconception that partners or close family members will automatically be given the right to make decisions on your behalf should anything happen to you – in fact it’s more and more common in hospital settings that families are being asked if there is an LPA in place rather than who the next of kin are.

If there is no LPA in place, and an individual loses capacity, then an application to the Court of Protection would be needed to appoint a ‘deputy’ to make decisions regarding the donor’s healthcare and/or finances. It is possible for loved ones to make this application however it is a much more costly and timely process than formalising an LPA, and sometimes even includes a court hearing. Clearly, having an LPA in place is not only helpful for you in knowing that people you trust are making decisions for you, but also saves your family and loved ones from time and expense in the future at what is potentially an upsetting and stressful time.

We can help

For further information on lasting powers of attorney contact our experienced Private Client team at Duncan & Toplis Legal Services, who can talk you through the process and advise you of the next steps.

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