What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document which allows you to name one or more people (called Attorney/s) to make decisions for you, should you find yourself in a position where you’re unable to make decisions for yourself.
There are two types of Lasting Power of Attorney (LPA) available in England and Wales. You as the "donor" can make either or both:
- A Property and Financial Lasting Power of Attorney gives power to the Attorney to make decisions about the donor’s property and financial affairs
- A Health and Welfare Lasting Power of Attorney 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"
Without an Lasting Power of Attorney, people you care about could face the costly and lengthy process of having to apply to the Court of Protection to be appointed as your Deputy, causing them unnecessary costs and distress.
Our Wills and Trusts Solicitors will listen to and carefully consider your wishes, before providing you with any assistance you may need in drafting an effective and enforceable Lasting Power of Attorney.
Advice about the registration of your Lasting Power of Attorney will also be provided.
Our team offer fixed and competitive fees, and deliver a client-centred, timely and professional service.
We can offer Financial and Health and Wellbeing LPAs both on an individual or combined basis.
More Information on Lasting Powers of Attorney
Because a Lasting Power of Attorney is an important document giving a lot of power to another person, the Lasting Power of Attorney document 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’s 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 Lasting Power of Attorney and hasn’t been put under any pressure to make it.
We offer free initial legal advice and will be happy to answer any questions you may have.
Frequently asked questions
- Who is the Donor?
Anyone aged 18 or over, with the capacity to understand the nature and meaning of the document, can make a 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’s 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 after the LPA is registered with the Office of the Public Guardian. With a Property and Financial LPA, the Attorney can act even if the donor still has mental capacity, as long as the LPA is registered. With a Health and 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?
A Lasting Power of Attorney 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 Lasting Power of Attorney can then be registered and, once registered, is ready for use.
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