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What is a Lasting Power of Attorney? Your questions answered

Written by

Judith Hurle

Published on

June 7, 2023

Senior Couple - Lasting Powers of Attorney

Judith Hurle, a Wills executive in our West Wickham office, answers your frequently asked questions regarding Lasting Powers of Attorney and how they can help you.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that lets you appoint one or more people to help you make decisions or make decisions on your behalf.

There are many reasons why you might need someone to make decisions for you or act on your behalf, such as:

  • This could just be a temporary situation, for example, if you are in hospital and need help with everyday tasks such as paying bills
  • You may need to make long term plans if, for example, you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future

Who is the Donor?

The Donor is the person making the Lasting Power of Attorney

What is an Attorney?

An Attorney is the person you appoint to manage your affairs on your behalf.

Who can be an Attorney?

Anyone over the age of 18 can be an Attorney. It is usual for Donors to appoint close family members, such as a spouse and/or children.

Are there different types of Lasting Powers of Attorney?

There are two types of Lasting Power of Attorney you can make:

  • Property & Financial – this document can be used while you still have mental capacity but need some help from your Attorneys. It enables your Attorneys to access your bank account and financial assets to pay bills or make payments on your behalf. It also gives your Attorney authority to sell your property should you need to move into a care home and are unable to authorise this yourself
  • Health & Welfare – this document can only be used once you have lost mental capacity but is still useful to your Attorney even if you are making your own decisions. If you have lost mental capacity, then an Attorney can generally make decisions about things such as:
    • Where you should live
    • Your medical care
    • What you should eat
    • Who you should have contact with
    • What kind of social activities you should take part in
    • You can also give special permission for your Attorney to make decisions about life-saving treatment

Can I have both a Property and Affairs LPA and Health and Welfare LPA and would my Attorneys have to be the same?

It is always recommended to make both types of Lasting Power of Attorney to make sure that you are covered for all eventualities. It is becoming more and more frequent for medical practitioners and care homes to ask family members of the Donor if there is a Health and Welfare LPA in place allowing the family to make decisions on behalf of the Donor. If no Health and Welfare LPA is in place it may delay dealing with health matters on behalf of the Donor.
They are, however, independent of each other and so you could appoint different Attorneys if you wished.

When can an Attorney act?

The Donor decides, when making the Lasting Power of Attorney, whether their Attorney can act once the document has been registered with the Office of the Public Guardian or only if the Donor loses mental capacity

How must my Attorney act for me?

Your Attorney must:

  • Assume that you can make your own decisions unless they have established that you cannot
  • Help you to make as many decisions for yourself as they can
  • Not treat you as unable to make a decision, unless all practicable steps to help you do so have been made without success
  • Act in your best interests always when you are unable to make decisions for yourself
  • Consider whether they can make a decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose

How many Attorneys can I have?

You can appoint up to four people to be your Attorneys. The Donor will decide whether the Attorneys are to act jointly or jointly & severally

Can I restrict my Attorneys’ powers?

Yes, it is possible within the Lasting Power of Attorney document to place restrictions and instructions on how your Attorneys can act for you, for example, you may not wish to give your Attorney authority over some of your assets. However, this is uncommon because your Attorney should be someone you trust completely and to impose restrictions, in most cases, would seem unnecessary

Can my Attorneys make gifts on my behalf?

In general, Attorneys are not permitted to make gifts without the approval of the Court of Protection. This is the case even if the Attorney wishes to benefit the Donor by making a gift, for example, reducing the Donor’s Estate for Inheritance Tax purposes. There is limited authority for Attorneys to make gifts, for example:

  • to charities
  • gifts to family members of a seasonal nature, i.e. birthdays and Christmas,
  • on the occasion of a birth or marriage/civil partnership

If an Attorney is considering making a gift, they should first seek appropriate legal advice

Who can witness my signature?

Anyone over 18 who is not a named Attorney or Replacement Attorney and must be completely independent of the Donor

What happens if I have no Lasting Power of Attorney and I lose capacity to manage my affairs?

The only way a person can be legally appointed to manage your affairs would be through a Deputyship Order at the Court of Protection

Would you like to learn more about setting up your Lasting power of attorney?

At Amphlett Lissimore, we take away the burden of completing and registering the Lasting Power of Attorney and we advise you on all aspects of the document along the way. We can provide help and advice on every aspect of your LPA, assess your mental capacity and be your certificate providers, and be on hand for future guidance to your attorneys.

Our Wills and Probate solicitors and lawyers have in-depth knowledge in all areas of Wills and estate administration and will ensure that your lasting powers of attorney are set up correctly and ready to use when they are needed. They will put you at ease, explaining everything clearly with no legal jargon. The team are all Dementia Friends and are committed to learning how best to support our clients living with Dementia. Our Wills and Probate team includes an accredited member of Solicitors for the Elderly and a member of STEP (Society of Trust and Estate Practitioners).

About the author

Judith Hurle is a Wills Executive, based in our West Wickham office. Judith specialises in Wills, Lasting Powers of Attorney, and registrations of Enduring Powers of Attorney.

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