Lasting Powers of Attorney

Legal Guide

Our Private Client Team have helped many families with lasting power of attorney matters and can help you.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document made by a donor that allows another person (an attorney) to make decisions about the donor’s health and welfare or property and affairs. The documents are made now and give the attorney power to act at a time in the future when the donor may no longer wish to make decisions or may not have the mental capacity to do so.

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Because an Lasting Power of Attorney is an important document giving a lot of power to another person, it must adopt a specific legal format and carries with it the following safeguards:

  • It must be registered with the Office of the Public Guardian before it can be used by the attorney
  • Before it is registered, certain "named" persons related or connected to the donor must be notified and will have the opportunity to object
  • It must contain a certificate from an appropriate person that the donor understands the LPA and has not been put under any pressure to make it
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Key Information:

Types of Lasting Power of Attorney

There are two types of LPA and a donor can make either or both:

  • A Property and Affairs LPA gives power to the attorney to make decisions about the donor’s property and financial affairs
  • A Personal Welfare LPA gives power to the attorney to make decisions about the donor’s healthcare and personal welfare. These decisions can only be taken if the donor lacks mental capacity, and may include decisions on whether to accept or refuse "life sustaining treatment"

Who is the Donor?

Anyone aged 18 or over, with the capacity to understand the nature and meaning of the document, can make an Lasting Power of Attorney and therefore can be a donor. However, an LPA is a personal document and a donor cannot make it jointly with another person. So, for example, spouses or civil partners would each need to make their own LPAs.

Who can be an Attorney?

The attorney must be 18 or over, have mental capacity and not be a bankrupt. The attorney is the person chosen and appointed to take decisions regarding the donor’s personal welfare or property and affairs. It is an important responsibility and the donor should ensure that the attorney is willing to be appointed and able and capable of taking those decisions.

What are the Attorney’s Responsibilities?

The attorney cannot act until the LPA is registered with the Office of the Public Guardian. With a Property and Affairs LPA, the attorney can act even if the donor still has mental capacity, as long as the LPA is registered. With a Personal Welfare LPA the attorney can only act if the donor lacks mental capacity.

In any event, the attorney must act within the scope of the authority given in the LPA and in accordance with the principles set out in the Mental Capacity Act 2005. In particular, the attorney must have regard to the guidance in the Code of Practice to the Mental Capacity Act and must only act or make decisions in the donor’s best interests.

How do I make a Lasting Power of Attorney?

An LPA is a formal legal document and must be completed carefully. To complete it, you need to consider the following points:

  • Who is to be the attorney? Is that person appropriate? Does he/she agree to be appointed?
  • Do you wish to give general power to your attorney, or limit or restrict the attorney’s powers?
  • Who is to provide a formal certificate of capacity? e.g a GP?
  • Who is to be given formal notification of the application to register the LPA?

Once you have considered these points, the document can be prepared, the certificate of capacity obtained and notice given of the registration. The LPA can then be registered and, once registered, is ready for use.

How can we help?

At Simpson Millar LLP Solicitors, we advise on and prepare Lasting Powers of Attorney on behalf of donors. David Ross also accepts instructions as a professional Property and Affairs attorney in appropriate cases.

How much would help cost?

We offer a full service or an unbundled service so you can decide which option is best for you. You can find out more about what is included in each service by visiting our Private Client Legal Costs section.

For further information or to discuss your circumstances on an informal basis please call us on 0345 357 9000 or 0347 357 9400 or send us your enquiry via email using our online form and we will get in touch with you.

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James Skinner | Associate Solicitor, Court of Protection | Simpons Millar LLP

James Skinner
Associate, Court of Protection

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