What to consider when making a lasting power of attorney
Our experts answer some key questions and advise on what to consider when choosing the right lasting power of attorney for you.
What is a lasting power of attorney?
A lasting power of attorney is a document that you can put in place which enables you to appoint people that you trust to act as your attorneys so that they can take control of, or assist with, your financial or personal welfare decisions during your lifetime.
This is useful if you are unable to manage your own affairs, whether temporarily or permanently, due to illness, physical impairment, or mental incapacity.
The two different types of lasting power of attorney
Lasting power of attorney for health and welfare
A lasting power of attorney for health and welfare gives your attorneys authority to make decisions about your health and welfare if you have lost capacity to make those decisions for yourself. This can include (but is not limited to) decisions such as where you might live if you are unable to stay at home, your daily diet and routine and/or your medical care. You can also choose whether or not you are happy for your attorneys to make decisions about whether to accept or refuse life-sustaining treatment on your behalf.
Lasting power of attorney for property and financial affairs
A lasting power of attorney for property and financial affairs allows your attorneys to decide how your financial affairs are managed. It will specifically give your attorneys the authority to pay bills on your behalf, open, close and manage your bank accounts, claim, receive and use your benefits, pensions and allowances, and even assist in selling your house, if required. If you have an interest in a business, it may be prudent to have a separate property and financial affairs lasting power of attorney which is limited to dealing with your business interests. Your attorneys can act under the property and financial affairs lasting power of attorney with your consent if you have mental capacity or without your consent if you lack mental capacity.
Who to appoint as my attorneys?
You can choose members of your family, friends, or professionals such as solicitors or accountants to act as your attorneys. Professional attorneys are likely to charge for their services, usually on an hourly rate. If you are appointing professionals to act on your behalf, you must make sure that you discuss and approve the basis of their charges for acting on your behalf. Your attorneys should be people that you trust but also people who have sufficient skills to manage the types of decision you are asking them to make on your behalf.
How should my attorneys act?
If you are appointing more than one attorney to act on your behalf, they can be appointed to act jointly (meaning that they must act together and cannot act independently), jointly and severally (meaning that they cannot act together or individually), or jointly in some matters and jointly and severally in others. There are advantages and disadvantages to each type of appointment so it is important that you obtain advice before making this decision.
Who can be a certificate provider for a lasting power of attorney?
In order for a valid lasting power of attorney to be created, you must have a certificate provider. The certificate provider must be someone you have known in a personal capacity for at least two years or a suitably qualified professional such as a solicitor or GP. The certificate provider cannot also be your attorney. In signing the certificate, the certificate provider is confirming that they believe that you have sufficient capacity to understand the nature and effect of the document you are signing and that you are not being put under any pressure to get it signed.
Registering lasting power of attorney
Your attorneys cannot use either lasting power of attorney until it has been registered with the Office of the Public Guardian (‘OPG’). You can choose to register the documents as soon as they are created, or you can delay registration until such time as the lasting powers of attorney are required. The registration process takes approximately 6-8 weeks to complete and there is a registration fee of £82 per document, which is payable direct to the OPG.
Do I want anyone to be notified of the application to register my lasting power of attorney?
You can request formal notification to be sent to any person (other than your named attorneys) when your lasting powers of attorney are registered although there is no obligation for you to do so. If the people that you choose to notify of the registration have concerns at the point of registration, they can object to the registration of your lasting power of attorney with the OPG. This is a safeguard for you so the people you choose to be notified need to know you well enough to be able to raise concerns if appropriate.
What guidance must my attorneys follow when carrying out their duties as my attorney?
Your attorneys are bound by the Mental Capacity Act 2005 (‘MCA’) and the code of practice relating to that legislation. There are five main principles of the MCA which attorneys have to have regard to when making any decision on your behalf. These include the following:
- Your attorneys must assume that you can make your own decisions unless you are unable to do so.
- Your attorneys must help you to make as many of your own decisions as possible.
- Your attorneys must not treat you as being unable to make a decision simply because you make an unwise decision.
Can I cancel my lasting power of attorney if I change my mind?
Provided you have capacity to make decisions for yourself, you can cancel your lasting power(s) of attorney at any time before or after it/they have been registered. Amendments to an existing lasting power of attorney are not permitted.
Who makes decisions if there is no lasting power of attorney?
Without a lasting power of attorney in place, there is no automatic right for family members to manage a person’s finances or make decisions about their personal welfare. If a person loses mental capacity without having made an lasting power of attorney, their family will have to make an application to the Court of Protection to be appointed as their deputy. A Court of Protection application is significantly more costly and time consuming, which often means that assets are effectively frozen for a long period of time whilst no action can be taken.
Even married couples can experience difficulties without lasting power of attorneys in place. This was shown in the TV documentary following Kate Garraway and Derek Draper’s lives when Derek was incapacitated with COVID-19 in 2020. The documentary demonstrated how, despite being married, Kate faced a number of challenges accessing Derek’s finances which meant she was unable to pay bills which were registered in Derek’s sole name. Even where couples hold money in joint accounts, there is no automatic right for the joint owner to continue using the account when the other party has lost mental capacity.
Unmarried partners face an even more difficult challenge if no planning has been put in place. The idea of the “common law spouse” is a misconception. A relationship without a marriage or formal civil partnership has no formal legal standing, regardless of the longevity of the partnership, meaning that unmarried partners do not have the same rights as a spouse or registered civil partner.
Without a health and welfare lasting power of attorney in place, it can be particularly problematic for an unmarried partner to made decisions about medical care and treatment on behalf of an incapacitated person. Unmarried partners have no legal recognition as “next of kin” in the eyes of medical professionals. This often means that other family members are responsible for making decisions about medical or life-sustaining treatment. This may not necessarily be what an incapacitated person would want.
If you have questions about LPAs, please contact our specialist power of attorney lawyers.