Lasting Powers of Attorney FAQs

Everyone wants to live a long and healthy life and to keep control of their affairs for as long as they can.  A Lasting Power of Attorney can give peace of mind to you and your loved ones, just in case things don’t go quite as planned. Some frequently asked questions include:

• What is a Lasting Power of Attorney?
• When should I make my Lasting Power of Attorney?
• Who should my attorney be?
• Can my attorney just do what they like with my money?
• Do I need a solicitor to make a Lasting Power of Attorney?
• What happens if I lose the ability to make decisions but I haven’t made a Lasting Power of Attorney?

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that appoints a trusted person (your ‘attorney’) to make decisions for you if you are no longer able to make them yourself.  This might happen if you are ill or injured or, more often, simply as a result of getting older.  There are two types of LPA:

1. Property & Financial Affairs, which allows you to choose an attorney to operate your bank accounts, pay your bills and even sell your property.  You can decide whether you want this power of attorney to be usable straight away or only if you no longer have mental capacity.
2. Health & Welfare, which allows you to choose an attorney to make decisions about things like your medical treatment and where you should live.  Perhaps the most important decision of all is whether or not to continue medical treatment if there is no chance you will recover.  It is up to you whether or not your attorney has power to make this decision on your behalf.  A health and welfare power of attorney can only be used once you are unable to make these decisions for yourself.

Your LPA cannot be used until it is registered with the Office of the Public Guardian, who will check it first to make sure it has been prepared properly.  It is almost always best to get your LPA registered straight away so that it is ready as soon as it is needed.

When should I make my Lasting Power of Attorney?

You can only make an LPA while you have mental capacity so it is a good idea to think about it early, even if you are young and healthy.  The chances are that you won’t need it for a long time and maybe not at all.  However, if something unexpected happens, for example if you are in an accident, then having an LPA in place will be one less thing for your loved ones to worry about.

If you make an LPA now and change your mind about who your attorneys should be, then you can always make a new one later.

Who should my attorney be?

Anyone can be an attorney, provided that they are over 18.  The most important qualification they can have is that you trust them.  Many people chose their partner or a close friend or relative.  Being an attorney is a big responsibility and you may feel that you don’t want to put this responsibility on someone you love.  In this case, you can appoint a trusted professional such as your solicitor or accountant.  Remember that a professional will usually charge a fee for acting as your attorney.

You can also appoint more than one attorney and you can even appoint replacement attorneys, in case your first choice is no longer available.

Can my attorney just do what they like with my money?

You can give your attorney instructions about how they should manage your property.  For example, you may feel very strongly that your home should not be sold.  There are also rules which apply to all attorneys about how they should behave.  They are not allowed to spend your money on themselves and there are very strict limits about how much of your property they can give away as gifts to others.  If an attorney doesn’t follow these rules, then the Court of Protection has the power to remove them and order them to pay your money back.

Do I need a solicitor to make a Lasting Power of Attorney?

Unless your circumstances are particularly complicated, you can probably make your LPA yourself.  You can even fill in the form online and there are helpful instructions to guide you through the process.  In some situations, it might be a good idea to ask a solicitor to help you.  For example:

• If you have health problems which might cause someone to doubt your mental capacity to make an LPA;
• If you want your solicitor to act as your attorney;
• If you want to include special instructions, for example about making gifts, instructing an investment manager or about accessing your Will;
• If you have property in another country.

We often meet with clients of all ages to help them to make an LPA which will work for them.  We talk through who they should appoint as their attorney, what they want their attorney to be able to do and what they don’t want them to be able to do.  We make sure that the LPA is prepared properly, especially if their affairs or wishes are complicated, so that it will be registered by the OPG and so that the attorneys can use it easily.  We also work with family members who want to put something in place for older relatives before it is too late.

What happens if I lose the ability to make decisions but I haven’t made a Lasting Power of Attorney?

In this case, someone will need to apply to the Court of Protection to be your deputy.  This is best avoided if possible because it is expensive and there are more responsibilities for a deputy and an attorney so it is a harder job.  You will also have much less control over who is appointed because, although the Court will listen to your wishes, they don’t necessarily have to follow them.