/ 22 Jun 2022

What is a Lasting Power of Attorney (LPA)

Lasting Powers of Attorney were introduced by the Mental Capacity Act 2005 which came into effect on the 1st October 2007. Lasting Powers of Attorney have replaced Enduring Powers of Attorney however, if you have an Enduring Power of Attorney dated before the 1st October 2007, as long as it is correctly signed and witnessed, it will still be valid.

Our private client team explain the different types of LPAs and how a solicitor can help in the different decisions surrounding making a LPAs.

Claire Martin

Partner

Head of Private Client

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Holly Fisher

Trainee Solicitor

Private Client

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What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a document which allows the donor (the person making the LPA) to select attorneys, who under an LPA will have the legal ability to manage certain aspects of your life in the event that you are unable to make decisions for yourself or need some help. This may be for a short time whilst you undergo a medical procedure or for the long term if you develop a cognitive impairment.

You may never need to use an LPA, but once registered LPAs can provide you with great reassurance and assistance should they ever be required. If you find yourself needing an attorney but have not made an LPA you may find that a stranger is appointed by the court to make decision for you. Our LPA team can be found here. 

What are the two different types of LPAs?

There are two types of LPAs, an LPA for Health & Welfare and an LPA for Property & Financial Affairs.

 

The Health & Welfare LPA

The Health & Welfare LPA allows your attorneys to make certain decisions in relation to your day-to-day wellbeing and medical welfare. For example, speaking to doctors on your behalf or deciding if you need to go into a care home. The Health and Welfare LPA can only be used when the donor (the person making the LPA) loses capacity either temporarily or permanently.

 

The Property & Financial Affairs LPA

The Property & Financial Affairs LPA provides your attorneys with the power to manage your finances.  Once registered, you, as the donor can opt to use the Property & Financial Affairs LPA whilst you retain capacity. This can be useful if you are finding it difficult to deal with your financial affairs and would prefer for your attorneys to deal with the tasks surrounding managing your day-to-day finances.

 

How can a solicitor help with the decisions surrounding lasting powers of attorney?

When should you make a lasting power of attorney?
  • A wills and probate solicitor can advise you on when the best time to make an LPA would be.
  • To make an LPA you must possess the mental capacity to understand the documents you are creating and their effect. If you approach the firm with concerns regarding your family or friends’ capacity, our solicitors can advise you on how capacity can be determined and what to do if the donor does not possess the required capacity to complete an LPA. In this case an application to the Court of Protection may be necessary, a solicitor can provide you with further advise should this route be required.  
Certificate Providers
  • A solicitor in many instances will be able to act as your certificate provider to confirm that they are satisfied that you understand what powers an LPA could potentially provide your attorneys.
  • A solicitor can confirm that you have demonstrated you were not being coerced into making the LPA and that you are not being unduly influenced, avoiding the potential for future disputes.
Attorneys 
  • A solicitor can further advise you on who to appoint as your attorneys and how many attorneys you should include in your LPAs.
  • A solicitor can discuss your wishes and advise you on how your attorneys should act in line with what would best reflect your needs.
  • If you do not have close friends or relatives able to take on the role of Attorney can discuss with you the costs implications of a professional Attorney specifically relevant to your financial circumstances
  • A solicitor can act as a professional Attorney.
Bespoke Clauses
  • Our solicitors can advise you on how to draft bespoke clauses within your LPA to reflect your wishes. If not correctly drafted the Office of Public Guardian may decline to register the LPA and you would need to draft a new LPA with different wording to these clauses
  • These clauses may restrict the attorneys’ powers or guide you Attorneys so as to ensure that even without capacity, you remain in control of certain aspects of your life e.g. how you would be assessed as to having capacity to make your own decisions, OR under what circumstances you might be looked after in a care home rather than your own home, OR what facilities and location would be important to you in a care home.
Explaining LPAs to attorneys

As solicitors, we can help your chosen attorneys understand the responsibilities and restrictions of the powers that the LPA may confer on to them. We can also ensure your attorneys understand how to use the LPAs should they ever be required.

Next steps and how Hanne & Co can help.

We can take you through the process of choosing your Attorney, advising on how it can be used, drafting the Lasting Power of Attorney and registering it with the Office of the Public Guardian. We can also help and advise you on making an application to the Court of Protection to be appointed as a Deputy.

Contact our Private Client department and they will be happy to assist.

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