A Lasting Power of Attorney (LPA) allows you to appoint people you trust to make decisions on your behalf if you need help managing your affairs or are no longer able to make certain decisions yourself.
Putting LPAs in place can be an important part of planning for the future. They can provide reassurance that, if illness, an accident or a loss of mental capacity affects your ability to manage your affairs, people you have chosen are legally authorised to act for you.
Although it is possible to make an LPA without using a solicitor, these documents can give attorneys significant authority over your finances, property, health or welfare. Mistakes in how an LPA is prepared, signed or structured can also cause difficulties when it is eventually needed.
Using a solicitor to prepare your Lasting Powers of Attorney can help ensure that your arrangements are legally valid, practical and properly reflect your wishes.
What are the two types of Lasting Power of Attorney?
There are two types of LPA in England and Wales.
Property and Financial Affairs LPA
A Property and Financial Affairs LPA can give your attorneys authority to deal with matters such as your:
bank and building society accounts;
household bills;
investments;
pensions; and
property.
Subject to any restrictions contained within the LPA, a Property and Financial Affairs LPA can generally be used with your permission while you still have mental capacity, once it has been registered.
Health and Welfare LPA
A Health and Welfare LPA can give your attorneys authority to make decisions about matters including:
medical treatment;
care and support;
where you live; and
aspects of your day-to-day welfare.
Unlike a Property and Financial Affairs LPA, these powers can generally only be exercised when you lack capacity to make the relevant decision yourself.
You can also decide whether your attorneys should have authority to give or refuse consent to life-sustaining treatment.
A solicitor can explain how each type of LPA operates and help you decide whether putting one or both in place is appropriate for your circumstances.
Why is it important to make an LPA before you need one?
An LPA can only be made while you have the mental capacity to understand the nature and effect of the document.
This makes planning ahead particularly important.
If you lose mental capacity without an appropriate LPA already in place, your family cannot simply create one on your behalf. Instead, someone may need to apply to the Court of Protection to be appointed as a deputy.
A deputyship application can be more time-consuming, restrictive and expensive than putting an LPA in place in advance. It can also mean that the person ultimately authorised to make decisions is not necessarily someone you personally chose for the role.
Creating LPAs while you are able to make your own decisions therefore allows you to retain greater control over who could act for you in the future and how that authority should operate.
How do you choose the right attorneys?
Choosing your attorneys is one of the most important decisions involved in making an LPA.
An attorney may eventually be responsible for significant financial, property, health or care decisions. It is therefore important to think beyond simply choosing the person closest to you.
Factors to consider can include whether someone is trustworthy and reliable, their ability to manage the decisions involved, their availability and location, and whether family relationships could potentially create conflicts.
You may also want to consider appointing different people for your financial and welfare decisions and naming replacement attorneys in case somebody is unable to act in the future.
A solicitor can talk these considerations through with you and help ensure that the appointments you make are both appropriate and workable.
Should attorneys act jointly or independently?
If you appoint more than one attorney, you will need to decide how they should make decisions.
Attorneys can be appointed:
jointly, so that they must make decisions together;
jointly and severally, allowing them to make decisions together or independently; or
jointly for certain specified decisions and jointly and severally for others.
There can be significant practical consequences to this choice.
Requiring attorneys to act jointly may provide additional oversight, for example, but it can also make an LPA less flexible. Problems can arise if one jointly appointed attorney subsequently dies or becomes unable to act and the document does not make effective provision for that situation.
Taking legal advice can help you understand the consequences of each option before deciding which arrangement best reflects your wishes.
Can you include instructions and preferences in an LPA?
Yes. The prescribed LPA forms allow you to include both legally binding instructions and non-binding preferences.
An instruction is something your attorneys must follow, whereas a preference records something you would like your attorneys to consider without imposing the same legal obligation.
These provisions can be useful, but they need to be drafted carefully.
Depending on your circumstances, you might want to address matters such as investment management, obtaining professional advice, the sale of your home, care preferences or consultation with particular family members.
An unclear, contradictory or legally ineffective instruction can create difficulties when an LPA is registered or subsequently used. In some circumstances, questions about a provision may even need to be considered by the Court of Protection.
A solicitor can help ensure that any instructions or preferences achieve what you intend without unnecessarily restricting your attorneys’ ability to act.
What about life-sustaining treatment?
When making a Health and Welfare LPA, you must make a specific decision about whether your attorneys should have authority to give or refuse consent to life-sustaining treatment on your behalf.
This is an important choice and one that should be properly understood before the LPA is signed.
Legal advice can help you understand the extent and limitations of your attorneys’ authority and how your wishes would operate alongside the requirement for decisions to be made in your best interests.
It is also important to consider whether you have an existing advance decision to refuse treatment or other documents recording your healthcare wishes, so that your arrangements are consistent.
How can a solicitor help prevent mistakes with an LPA?
An LPA must satisfy detailed legal requirements before it can be registered and used.
The donor, attorneys, witnesses and certificate provider all have particular roles, and the relevant sections must be completed, signed and dated correctly.
Errors can include signatures being completed incorrectly, missing or inconsistent information, unsuitable witnesses, contradictory instructions or ineffective appointments of attorneys and replacements.
Mistakes may result in the Office of the Public Guardian requiring corrections or rejecting an application, potentially causing additional delay and expense.
Having a solicitor prepare and oversee the LPA process can significantly reduce the risk of these problems occurring.
How does an LPA protect against pressure or abuse?
Because an LPA can give another person considerable authority, there are safeguards within the process.
A certificate provider must confirm that the person making the LPA understands the document, is acting freely and is not being subjected to fraud or undue pressure.
A solicitor can take instructions directly and independently, explore any concerns about vulnerability, coercion or mental capacity and maintain an appropriate record of the circumstances in which the LPA was made.
This can be particularly important where there is disagreement within a family, substantial assets are involved, a proposed attorney already plays a significant role in someone’s affairs or an appointment might later be questioned.
Depending on the circumstances and relevant requirements, a solicitor may also be able to act as the certificate provider.
What duties do attorneys have?
Being appointed as an attorney carries important legal responsibilities.
Attorneys must comply with the Mental Capacity Act 2005 and its Code of Practice. Their responsibilities include acting in the donor’s best interests, supporting the donor to make their own decisions wherever possible and considering capacity in relation to each particular decision.
Attorneys dealing with financial matters must also appropriately manage the donor’s finances, avoid conflicts of interest and act only within the authority given to them.
Understanding these responsibilities at the outset can help both the person making the LPA and their chosen attorneys know what the appointment involves.
How do LPAs fit with your wider future planning?
LPAs should not necessarily be considered in isolation.
Depending on your circumstances, they may need to work alongside your:
will;
trusts;
advance decisions or statements;
pension and investment arrangements;
business interests;
shareholder or partnership agreements; and
existing banking or professional arrangements.
Business owners may need to give particular consideration to whether their arrangements adequately cover both personal and commercial decisions.
Taking legal advice allows the wider picture to be considered and can help identify arrangements that might otherwise conflict or leave gaps.
Does an LPA need to be registered?
Yes. An LPA must be registered with the Office of the Public Guardian before it can be used.
Registration can take time, so waiting until the document is urgently needed can create unnecessary practical difficulties.
A solicitor can assist with the registration process, respond to queries that arise and explain how registered LPAs and certified copies should be stored and used.
When should you review your Lasting Powers of Attorney?
Your circumstances and relationships can change, so it is sensible to review your LPAs periodically.
A review may be particularly appropriate following:
the death or loss of capacity of an attorney;
marriage, divorce or separation;
a breakdown in your relationship with an attorney;
a move overseas;
a significant change in your assets or business interests;
changes to your health or care preferences; or
changes to your wider estate planning.
A registered LPA cannot generally simply be edited to reflect new circumstances. Depending on what has changed, it may need to be revoked and a replacement LPA made while you still have capacity.
Do you need a solicitor to make a Lasting Power of Attorney?
You do not have to use a solicitor to make an LPA. However, completing the official forms is only one part of the process.
Professional advice gives you the opportunity to consider who you are appointing, what authority you want them to have, how they should make decisions and whether the arrangements will work effectively if they are eventually needed.
Crucially, it also gives you the opportunity to identify potential problems while you still have the capacity to resolve them.
Speak to AR Brown Solicitors about Lasting Powers of Attorney
Lasting Powers of Attorney are ultimately about maintaining choice and control.
Putting the right arrangements in place now can help ensure that, if you are unable to make certain decisions in the future, people you know and trust have the appropriate legal authority to act for you.
At AR Brown Solicitors, we can advise you on Property and Financial Affairs LPAs and Health and Welfare LPAs, help you choose and appoint suitable attorneys, prepare the documents and assist with registration.
Whether you are considering LPAs for the first time, reviewing existing arrangements or putting them in place alongside your will and wider future planning, our team can guide you through the process.
Contact A R Brown & Co Solicitors to discuss making or reviewing your Lasting Powers of Attorney and putting the right arrangements in place for the future.