In this post we ask some expert solicitors about granting Powers of Attorney over someone if or when they are unable to make decisions themselves. This brief overview will help explain some concepts and some important considerations that may need to be considered.

Expert Solicitors Explain Lasting Powers of Attorney

1. What is a Lasting Power of Attorney (LPA)?

An LPA is a document which confers power to others to make decisions on your behalf when you are not able to.

There are two different types of LPA you can make:

  • Property and finances, which relates to managing your assets (bank account, buying and selling property, shares, and day-to-day finances).
  • Health and welfare, which relates to welfare and medical treatment decisions (such as where you might live, the care and medical treatment you receive and day-to-day welfare decisions).

If you do not put an LPA in place and were to lose mental capacity to manage your affairs, then a family member or close friend would need to make a court application to obtain a deputyship order.

2. Do LPAs come into effect as soon as they are signed or when the donor does not have mental capacity?

The property and finances LPA can be used whilst the donor has capacity and with their consent or if the donor does not have the required capacity, then the attorney can make the required decision. The health and welfare LPA can only be used by an attorney if the donor does not have the required capacity to make the decision or is unable to communicate their decision (e.g. they are in a coma).

The starting principal is that the person who puts the LPA in place (the donor) should be supported to make the decision required. Only if they are unable to make the decision should their attorney do so instead.

Capacity is decision specific and so it will depend on the decision required as to whether the donor is able to make it.

3. Difference between general power of attorney and LPA

A general power of attorney is only effective whilst the donor has capacity and is usually limited to specific item or task (e.g. sale of property or a company), whereas an LPA lasts beyond the donor losing capacity and is wider reaching in regards to the type of decisions being made.

4. Who can you appoint as your attorney? Does it have to be a family member?

You can appoint a number of attorneys or replacement attorneys. The LPA forms allow you to insert details of four attorneys or two replacement attorneys, however, there are continuation sheets if you wish to appoint more.

It is most important that you appoint people that you trust and so often people appoint their spouse or adult children. However, you can appoint another family member (sibling, niece or nephew, for example), a trusted friend or a professional (such as a solicitor or accountant).

5. Health and welfare LPA – can you appoint a professional?

Due to the type of decisions to be made, you will not be able to appoint a professional as your health and welfare attorney. The donor will need to consider appointing a close family member or friend who knows their wishes and what they want to achieve regarding care and treatment.

6. If you appoint more than one attorney, do they all act in making decisions?

The donor can decide how the attorneys will act – jointly and severally, jointly or jointly for some decisions and jointly and severally for others.

If you have appointed more than one attorney or replacement attorney, we would usually recommend they are appointed on a joint and several basis. This is because if you appoint your attorneys jointly and one of them is unable to act in the future (for example, because of life events, they lose capacity or predecease you) then the power would no longer take effect and the LPA would be invalidated. If your attorneys are appointed on a joint and several basis and one is unable to act, the others can continue to act under the LPA in your best interests. This will, of course, depend upon who you wish to appoint and the specific circumstances as to which option is best.

7. What happens if your attorneys have opposing thoughts?

Hopefully, your attorneys can reach a decision in the donor’s best interests. However, if they cannot, then they may need to go to the court for a decision.

8. What happens if the donor’s relationship with their attorney changes – can the donor change or revoke their LPA?

It is not possible to change an LPA once the document has been made. But if the donor wishes to make a change, they can revoke their existing LPA and put in place a new one.

9. If the person’s next of kin is not listed as an attorney, can they override an LPA decision?

Generally, no. If you have taken positive steps to appoint who you want to make decisions on your behalf, then your next of kin who are not appointed cannot overrule an attorney’s decision. If a next of kin or someone else close to the donor has concerns about how the LPA was made or if there was undue influence, then they can make an application to the court to review the document.

10. Making and registering an LPA

Each LPA form has a number of sections to complete, including:

  • Details of the donor
  • Details of the attorneys or replacement attorneys
  • How the attorneys can act
  • Life-sustaining treatment decisions (health and welfare only)
  • People to be notified when the LPA is registered
  • Preferences and instructions
  • Certificate Provider

Once the different sections have been completed, the donor, attorneys and certificate provider need to sign the LPA in the correct order.

Once the LPA is completed and signed by all parties, it cannot be used until it has been registered at the Office of the Public Guardian (OPG). There is a registration form attached to each LPA to be completed by the person submitting the application (which may be the donor or the attorneys, if the donor has lost capacity).

The signed forms are sent to the OPG with the registration fee (currently £82 per LPA). The OPG will review the LPA and ensure it has been completed correctly before registering and returning it to the applicant. The OPG are currently taking approximately 20 weeks to register an LPA.

11. Can an LPA be based outside of the UK?

An LPA is specific to each jurisdiction. If you hold assets in the UK then an LPA should be put in place in England and Wales. However, if you have assets in another country, you should seek local advice as to what appropriate document should be put in place.

12. Do your attorneys need to be based in the UK?

They do not have to be. You can appoint attorneys who live in another country, but it is helpful if you have at least one attorney based in the UK which might make the administration of your affairs easier.

13. Preferences and instructions

In each type of LPA you can include:

  • Preferences – non-binding wishes to your attorneys
  • Instructions – which are legally binding on your attorneys

Both preferences and instructions can limit how your LPA can be used and what third parties may require when acting on your attorneys’ instructions. As such it is very important to be careful with any such wording and you may wish to seek legal advice as to appropriate preferences or instructions to include based on your circumstances and wishes.

This material does not give a full statement of the law. It is intended for guidance only and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke LLP or Comfort Care At Home Ltd.

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