Clients often have questions about Lasting Powers of Attorney (LPA) – they may not be entirely clear what a LPA is, why one might be needed and when they should apply for one. Some of the most common questions asked are:
What exactly is a Lasting Power of Attorney?
- A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone you trust, called an ‘attorney’ to make decisions on your behalf about your property and financial affairs or your health and care.
There are two types of LPA. The first, a Lasting Power of Attorney – Property and Financial Affairs which allows your chosen attorneys to manage your finances and your property, should you ever be unable to do so yourself. The second, a Lasting Power of Attorney – Health and Welfare which allows your chosen attorneys to make decisions about how and where you should be cared for and give consent for any medical treatment you need. You can also choose to give your attorneys the authority to make decisions about life-sustaining treatment if you wish.
When can a Lasting Power of Attorney be used?
- LPAs can be used if the person who has made the LPA no longer has mental capacity to manage their own affairs. LPAs are not just for older people, nor are they just for people with Dementia. They can be used for other reasons, such as a stroke or brain injury. They are increasingly being made by young, healthy people in case of accident or disability.
I have made a Will – won’t my Executors be able to look after my affairs if I can’t?
- Unfortunately, not. Your Will only takes effect when you die. Your Executors do not have any legal authority to act on your behalf when you are living. A LPA is the legal document which allows someone you trust to look after your affairs while you are living. It may be that the person you would want to be your attorney is the same as your Executor but they still need to be formally appointed in a LPA.
My spouse or children will be able to manage my affairs or make decisions about my health and care, so do I need a Lasting Power of Attorney?
- Should you lose mental capacity to manage your own affairs, your spouse or children won’t be allowed to manage your affairs on your behalf. They cannot manage your bank account, savings and investments or your property without the legal authority given by a LPA. Also, without a Lasting Power of Attorney – Health and Welfare in place, they will have limited say in how you are cared for and any medical treatment you receive.
Who can I appoint as my Attorney?
- You can appoint any person you trust to be your attorney, providing they are over the age of 18 and have not been bankrupt. Your attorneys do not have to be immediate family members (although most people do appoint spouses or their children) and can be close friends. You can appoint between one and four people to be your attorneys.
There is no-one I would trust to act for me – What should I do?
- If you do not know anyone who would be suitable, you can appoint a professional such as a Solicitor to act as your attorney. Professionals will act for you in the same way as a relative or friend but are allowed to charge to act as an attorney.
I’ve been told that you can’t make a Lasting Power of Attorney until you lose mental capacity – Is this true?
- This is absolutely NOT true! You can only make a LPA if you have sufficient mental capacity to give your own instructions and make your own decision about who you should appoint as your attorneys. If you have already substantially lost capacity, it is too late to make a LPA and the only option would be a Court of Protection application for someone to be appointed by the court to manage your affairs.
I have an Enduring Power of Attorney – so I still need to make a Lasting Power of Attorney?
- Lasting Powers of Attorney have replaced Enduring Powers of Attorney. If you have made an Enduring Power of Attorney, it is still a valid document and can be used after registration. However, it only covers your property and financial affairs. If you wish to appoint attorneys to help with health and care decisions, it is important to make a Lasting Power of Attorney – Health and Welfare.
Why not give us a call to arrange an appointment to discuss your requirements with one of our specialist team members.