Power of attorney solicitors

A Lasting Power of Attorney is a legal document which allows you to appoint one or more individuals (known as your 'Attorneys') to act on your behalf if you become incapable of making decisions for yourself.

A Lasting Power of Attorney can be made and will be a valid document but must be registered with the Office of the Public Guardian before it can be used. We can deal with the registration process for you as part of our service

There are two types of Lasting Power of Attorney:

• Property and Financial
• Health and Care

These are two separate documents and you could appoint different people if you wish.

As the authority given to your Attorneys is very wide-ranging, it is important to appoint someone you trust and who is well suited to the role that you are asking them to undertake.

You can have as many attorneys as you like, but for administrative ease, we suggest that you have no more than four.

If you appoint more than one attorney you can choose whether they always have to act together or if each attorney can act individually.

You can also appoint a replacement attorney(s) to take over if your main attorneys can no longer act for you.

Yes, there are two different types of Lasting Power of Attorney. One deals with property and finances, whilst the other deals with health and welfare.

A Lasting Power of Attorney dealing with property and finances is used to pass the power of attorney over to a family member or someone you trust, so they can make decisions for you and on your behalf about financial issues.

They would be then allowed to make decisions regarding selling your house, dealing with any benefits, your bank accounts or investments. They would also be allowed to pay bills on your behalf.

A financial affairs Lasting Power of Attorney can be used whilst you still have mental capacity to deal with these affairs themselves, but only if you so choose. Otherwise, it only comes into effect when you lose mental capacity.

Certain clients can also require a Business LPA. This is a bespoke property and finance LPA which is often drafted for business owners who want to ensure continuity for the business or may be thinking about a sale of their business. It is often the case that someone with implicit understanding of the business or with the relevant professional knowledge is appointed in such circumstances.

This document gives your Attorney(s) the authority to make decisions about your care and personal welfare if you lack mental capacity.

A Lasting Power of Attorney dealing with health and welfare is used to make decisions on health and welfare aspects, such as where you live, whether in care or otherwise, what you can eat, your daily routine and even the clothes you wear. It includes your medical treatment.

You also have the option of whether to give your Attorney(s) the authority to make decisions on your behalf about the acceptance or refusal of life sustaining treatment.

Your Attorneys cannot use a Lasting Power of Attorney to force medical professionals to administer a particular type of treatment.

A health and welfare Lasting Power of Attorney can only come into effect when you lose mental capacity.

Your attorney(s) can deal with all aspects of your property and financial affairs using the Lasting Power of Attorney unless you expressly exclude them dealing with a particular asset.

For example, if you have a particularly expensive art collection you may wish to state an instruction or preference that they seek professional valuation advice about before they decide what to do with the collection.

An instruction must be followed, whilst a preference is just an indication to your attorney(s) as to what you would want them to do.

Yes, for a Financial and Property LPA. You can choose whether your Lasting Power of Attorney can be used before you lose mental capacity or stipulate that it can only come into effect once you lose capacity.

A Health LPA can only come into effect when you have lost mental capacity.

The Office of the Public Guardian (OPG) is the agency responsible for recording and registering LPAs and for protecting the interests of those who lack capacity.

A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian. They charge a fee, currently up to £82, for each LPA application received depending on your circumstances.

The OPG operates a register of LPAs and if an original is lost then further copies can be issued.

The OPG also has a supervisory function for those with LPAs. if anyone has any concerns in relation to an attorney’s actions or believe that the donor is in some way vulnerable then these concerns can be reported to the OPG and the can decide whether to follow this up with the attorney(s) in question.

Having a Lasting Power of Attorney in place ensures that you and your family are protected from any distressing legal battles as the attorney you have chosen will be allowed, by law, to look after your best interests if you lose the ability to do this for yourself.

Without a Lasting Power of Attorney, relatives have to apply to the Court of Protection for deputyship, something which can be a time consuming and costly process. If someone becomes incapacitated without having a Lasting Power of Attorney in place, the Court of Protection can appoint a Deputy to look after their financial affairs.

Although it is possible to apply for an LPA yourself it is easy to make a mistake and have your application rejected or create an LPA which does not do what you want it to. A large number of Lasting Power of Attorney applications are rejected by the Office of Public Guardianship every year.

Attorneys are under an overriding duty to act in the best interests of the person who appointed them and an attorney cannot personally benefit from acting for you.

If you have lost capacity, there are very limited circumstances where attorneys could make modest gifts on your behalf. Anything more would need to be approved by the Court of Protection.

No – the authority of an attorney does not stretch that far although there is a process that an attorney can follow to apply to the Court of Protection for a Will to be made in such circumstances.

A Lasting Power of Attorney can only be made whilst you have the required mental capacity. If you no longer have mental capacity, your friends or family members would have to apply to the Court of Protection to be appointed as your 'Deputy' to be authorised to make decisions relating to your property and financial affairs.

A Deputy would carry out the same role as an Attorney although there is more formality and cost involved. Also, it is the court which decides who is appointed as a Deputy - you would have no control over who this is.

The Court of Protection process is longer and more costly than the preparation and registration of a Lasting Power of Attorney. A Deputy also has additional duties to report to the Court of Protection on an annual basis with additional supervision fees payable to the Court and insurance costs to pay for the required annual insurance policy.

The Court of Protection will rarely agree to appoint a Deputy generally to make decisions about your health and welfare, preferring one off applications to make specific decisions. By its very nature, this type of application is often expensive.

A Lasting Power of Attorney can be cancelled at any time provided you have mental capacity. You will need to sign an appropriate form, register this with the Office of the Public Guardian and inform the attorney concerned.

If you wish to change your Lasting Power of Attorney in the future, you cannot amend an existing document and as such, you would need to create a new one.

The Mental Capacity Act 2005 (MCA 2005) introduced statutory provisions (known as advance decisions) allowing an individual to decide to refuse medical treatment before they lose capacity to do so.

A Living Will is often referred to as an Advance Decision or an Advance Statement. It is essentially a document that allows you to set out how you want to be treated should you lose the ability to make your own decisions about your health and care. They can be made separately or together and are often considered at the same time as a health & welfare Lasting Power of Attorney.

There is no prescribed form to be used for a person wishing to make an advance decision to refuse treatment. Nor are there any particular formalities about the format of an advance decision. It can be written or verbal – unless it deals with life-sustaining treatment, in which case it must be written and specific rules apply. You should always seek advice from a specialist in this area.

An Advance Decision is a legally persuasive document. It allows you to say what treatments you wish to refuse if you are unable to make your own decisions. Used in conjunction with a Health and Welfare LPA, it permits your attorney(s) to authorise or refuse a wide range of treatment and/or care options.

An Advance Statement is not legally binding. It is your own statement of your wishes and preferences that you would want those who care for you to take into account towards the end of life. It can cover issues such as you prefer tea to coffee.

These set of documents ensure that you keep control of choices concerning your life should you lose the ability to make your own decisions by allowing you to refuse treatment in advance. They will ensure that those who care for you can take your preferences, wishes, and beliefs into account towards the end of your life. They allow you to go into much more detail than you can include in a Health and Welfare LPA.

We strongly recommend both documents are prepared in conjunction with each other to ensure your Attorney(s) have all the tools they need to carry out your wishes when you no longer have the capacity to communicate your wishes relating to these decisions.