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Making a lasting power of attorney | The complete guide

29 December 2020

Making a lasting power of attorney is an important decision.

This guide runs through some of the common questions asked about lasting powers of attorney; the different types, when they are used, and why they are used. We also discuss how solicitors can help you to put a lasting power of attorney in place.

Though none of us likes to think about losing the ability to manage our own affairs, it can happen. Dementia, brain injuries and mental health problems are a few of the conditions that can render us incapable of making our own decisions, temporarily or permanently. It is important to put arrangements in place so that others can make decisions for us should the need arise. You do that by making a lasting power of attorney (LPA).

Jump to each topic in the guide by clicking on the links below, or watch the video for more information.

Contents

Health & welfare lasting powers of attorney (LPAs)

Property & financial affairs lasting powers of attorney (LPAs)

Lasting powers of attorney for businesses (Business LPAs)

Continue reading to find out more about creating a lasting power of attorney, or contact us using the button below if you require advice.

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What is an LPA?

A lasting power of attorney (LPA) is a legal document that enables you to choose one or more people to make decisions on your behalf, should you lack the capacity to do this yourself either temporarily or permanently. 

Many people have heard of Enduring Powers of Attorney (EPAs), however, these were replaced by LPAs in 2007.  Any existing EPAs remain valid. 

What are the three types of power of attorney?

There are three different types of LPA:

Health and welfare LPA: enables decisions to be made about your personal wellbeing  such as where you live, who provides day-to-day care, medical treatment etc.

Property and financial affairs LPA: enables decisions to be made about your financial assets such as selling your house, managing your bank account, paying bills etc.

Business LPA: ensures that your business can continue to operate should you be unable to fulfil your role for any reason such as managing payroll, performing contracts, employing staff etc.

The three LPAs are completely separate: you can choose to make one or more, depending on your circumstances and needs. Brief details on each are set out below.

Are LPAs new?

LPAs were introduced in October 2007 replacing the traditional enduring power of attorney (EPA). They are more complex to create than EPAs.

If you have an existing EPA, it will remain valid. Your attorney(s) will still be able to take care of your property and affairs but it is advisable to review your EPA to ensure that you are still happy with your appointed attorneys and that they have all the required powers needed to manage your assets effectively.

Further, an attorney appointed under an EPA will not be able to make decisions about health and welfare. If you would like to be able to delegate decision-making powers over your personal welfare, you should consider making a Health & welfare LPA.

Do attorneys act together or independently?

You can specify that your attorneys have to act together at all times, independently at all times, or that they can act together on some matters and independently on others. It is entirely up to you how you wish them to act and we will, of course, be able to advise you at our meeting.

If I wish to have more than one LPA, do my attorneys have to be the same?

No, it is up to you. You may appoint the same set of attorneys for all LPAs, or different ones. The skills and expertise required for each role may be very different. For example, a financial attorney should be well organized and financially savvy whereas a welfare attorney may be more familiar with and sensitive to your personal feelings towards certain medical treatments and care plans.

If you are appointing different attorneys, it is essential to choose people who can work together effectively. This will avoid the potential for disagreements about your care. For example, if your welfare attorneys choose a care home but the financial attorneys disagree with the choice, they could refuse to pay.

How do I set up and use an LPA?

An LPA is a lengthy document which asks you to confirm who you want to appoint, how and when you want them to act and what decisions you would like them to make. The document must be signed by you, your attorneys and a number of witnesses including a “Certificate Provider” who must confirm that you are capable of signing the document and that you understand the implications of it.

Therefore, setting up an LPA can be lengthy and complex affair and it is often best to speak to a professional to ensure that you understand choices you are making. A meeting can be arranged at which we can explain all the issues, discuss your particular needs and assist in completing the forms.

Once signed the LPA must be “activated” by registering with the Office of the Public Guardian. An unregistered LPA cannot be used by your attorneys and, as the process of registration takes a number of months, we recommend that LPAs are registered straight away and then stored securely until required.

Do you need a solicitor to arrange power of attorney?

Not necessarily. You can print and fill out an online LPA form without using a solicitor. However, DIY powers of attorney are not without risks, and we always recommend you seek the advice of a legal professional to ensure you understand the repercussions of each of the options given to you. Legal professionals, such as solicitors and legal executives, are specifically trained to think about the vast amount of scenarios in which people may find themselves, all of which should be considered when making an LPA. If you are not a legal professional, you can overlook important factors and even add in restrictions that are not practical. (For example, you can limit use of your LPA to when you have lost mental capacity, but this doesn’t give consideration to physical capacity issues.)

In addition, an independent person must sign the document to certify that the person making the LPA hasn’t been coerced into doing so. However, the standards of who can be a “certificate provider” are unclear, which could lead to unsuitable people acting as the certificate provider. If the Office of the Public Guardian have concerns about the way in which the form has been prepared or executed or the choice of certificate provider, they may refuse the application.

When should you make a lasting power of attorney?

People often wait until they have concerns about their mental capacity before thinking about preparing LPAs. Often, this can be too late, as you need to be capable of understanding the complexities involved. If your capacity is in question, the process can be longer, more complex and therefore, more expensive. In some cases it may be too late to prepare an LPA resulting in a long and expensive court process.

Everyone should consider putting LPAs in place and a good time to do this is when reviewing your personal affairs, such as when you prepare or review your will.

Do I need to tell anyone about my LPA?

Whilst you do not have to tell anyone that you are making an LPA, the documents must be signed by your chosen attorneys and so it will be necessary to notify them of their appointment. This can often be a useful opportunity to discuss your wishes and how you would like them to act.

You can nominate people to inform when the LPA comes into force. These people would have the opportunity to object to the registration of the LPA if they considered your chosen attorneys unsuitable for the role or if they believed that you lacked the capacity to sign the documents due to mental incapacity or pressure from another person.

What happens once I have made my LPA?

Once the LPA has been signed and registered, we will store the original in our strongroom until it is needed by your attorneys.

We have strict rules governing when the LPAs can be released to ensure that your attorneys only have access to the documents when appropriate.

What happens if my attorney’s details change?

You need to write to the Office of the Public Guardian (OPG) if one of your attorneys changes their name (by marriage or deed poll) or address.

You will need to supply supporting documentation (e.g. an original marriage certificate with the attorney’s new name and address).

You should not make changes to your own LPA document, as there is a risk that it could become invalid. If you need to make changes, you must contact OPG.

Can I cancel my lasting power of attorney?

You may revoke an LPA at any time, as long as you have capacity to do so. Your attorneys must be notified and, if the document has been registered with the Office of the Public Guardian, they must also be informed of its cancellation.

Once signed, you cannot replace, remove or add attorneys or instructions to your existing LPA. A new LPA must be prepared in its place and the old LPA revoked.

Can I dispute a lasting power of attorney?

Yes, the Court of Protection has the power to cancel a lasting power of attorney if it is shown that the attorney isn’t acting in the donor’s best interests. Read more here about how to dispute a lasting power of attorney.

To arrange an appointment

Please telephone 01242 514000 and ask to speak to one of our expert and helpful probate lawyers to arrange an appointment. You should allow approximately 1.5 hours.

We may arrange home or hospital visits if you are not able to travel to us.

There are several steps leading into our buildings. If access is likely to be a problem, please let us know.

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Health and welfare LPA

Health & welfare LPAs

What is health & welfare LPA?

This document authorises one or more people (attorneys) to make decisions about your care and medical treatment should you become unable to make those decisions for yourself.

What decisions can welfare attorney(s) make?

Attorneys can make decisions about all aspects of your personal welfare, for example where you live, people you are to have contact with and whether to give or refuse consent to medical treatment.

You can restrict these powers within the LPA if you wish. This may be advisable if you have strong wishes about any particular aspect of your care. Your attorney(s) will be legally bound by whatever is in your best interests.

Why do I need an LPA for health & welfare decisions?

Your friends and family often have the best understanding of your wishes and preferences when it comes to care and medical treatment. However, without a health & welfare LPA, doctors or social services are under no obligation to follow such wishes if you are no longer able to express them for yourself.

By way of a real life example, Mr X is a widower with two daughters who do not live locally to him. Mr X had previously put in place an LPA for property & finances, but chose not to proceed with a health & welfare LPA, despite advice to the contrary.

Mr X’s health subsequently deteriorated and he had to move into a nursing home. Unfortunately, due to dementia he no longer had capacity to make certain decisions for himself. Due to the distance, his daughters found it difficult to visit him, so they proposed that Mr X be moved to a nursing home local to them.

In this case, the nursing home intervened because it had to be shown that the move to the new nursing home was in Mr X’s best interests. As there was no LPA for health & welfare the local authority were also involved.

Eventually Mr X was moved to the new nursing home, but this was several months after the initial move had been planned. The delay caused much stress, worry and cost for the family, all of which could have been avoided if an LPA for health & welfare had been in place.

When can a health & welfare LPA be used?

A health & welfare LPA only comes into force if and when you lack the mental capacity to make such decisions for yourself. Physical incapacity does not trigger use of your health and welfare LPA.

Can welfare attorneys make decisions on ‘life sustaining’ treatment?

If you want your attorneys to be able to make such decisions, you must expressly give this power in the LPA, otherwise the decisions will be made by doctors or other health professionals.

You can tell your attorney(s) your own views and wishes regarding life sustaining treatment in advance or prepare a letter of wishes to assist them should they be required to make such decisions.

How does an LPA differ from a ‘living will’?

A ‘living will’ or “advance directive” is a document that sets out specific circumstances in which you would not want your life to be prolonged. Although they have been widely used and accepted ‘living wills’ are not legal documents and are not legally binding. They are simply an expression of your wishes which are lodged with your GP.

Unlike a ‘living will’, an LPA does not need to specify the exact circumstances in which you would or would not like to receive treatment. It leaves that decision to your attorneys or the medical professionals subject to the choice you make. Therefore, it provides for a greater number of eventualities.

Who should I appoint?

When setting up a health & welfare LPA, the most important consideration is who to appoint as your attorney(s).

Any adult individual can be an attorney but you must trust that the selected person would make decisions that you would be happy with if you were able to make them for yourself.

What questions do I need to consider before making a health and welfare LPA?

This is a short checklist of things you might want to think about before your meeting with us.

  1. Who would you like to appoint as your attorney(s)? You will probably want to choose people that you trust to carry out your wishes. You may also want to bear in mind their age and include someone from a younger generation.
  2. Would you also like to appoint a replacement attorney in case the people you have chosen are, for any reason, unable to act?
  3. Can you attorneys work together efectively? This ensures that decisions can be taken as quickly and amicably as possible.
  4. Do you want to give your attorneys authority to make decisions about life sustaining treatment?
  5. Would you like anyone to be informed in the event that your LPA is registered? These individuals would have the opportunity to challenge the registration of the LPA if they thought it inappropriate or invalid.
  6. Would you like to restrict your attorney(s) as to what decisions they may or may not be able to make on your behalf or give them guidance on anything you have particular concerns about?
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Property and financial affairs LPAs

Property & financial affairs LPAs

Do I need a property & financial affairs LPA if I have an EPA?

If you already have an enduring power of attorney (EPA) then you may not need to replace this with a property & financial affairs LPA.

However, there have been changes in “best practice” and so often the newer LPAs are more suitable. If your circumstances have changed since you signed your EPA, you may wish to consider making a property & financial affairs LPA in its place.

When can a property & financial affairs LPA be used?

It is up to you. You can specify that it can only be used in the event that you lose your mental capacity or that it can be used at any time. The latter might be preferable if you have the capacity to look after your affairs but are finding it burdensome or you need someone to act on your behalf while you are away from home.

What decisions can financial attorney(s) make?

Attorneys can make any decisions relating to your property such as selling or mortgaging it. They can also make decisions about money and investments such as your bank accounts, shares and pension.

Whilst financial attorneys cannot make decisions about your care, they would be responsible for the payment of any care which is deemed to be in your best interests by those with authority to make those decisions.

What happens if I lose capacity and have no property & financial affairs LPA?

If you have significant assets, then the court may appoint a ‘deputy’ to take care of your affairs. This process can take in excess of 9 months and the costs would be paid form your own funds (once access is available).

The individual appointed by the court won’t necessarily be someone you would appoint yourself and they would be subject to stricter supervision by the court than someone you appoint as your attorney.

Can anyone other than my attorney(s) make decisions for me?

No, as a general rule, attorneys cannot delegate their duties. However, if it is a purely administrative matter (something you wouldn’t expect an attorney to do personally), or if there are unforeseen circumstances, then an attorney can ask someone to act in his place.

Checklist

These are some of the things you may wish to consider before making an LPA.

  1. Who would you like to appoint as your attorney(s)? You will probably want to appoint someone who is well organized and financially savvy. You may also want to bear in mind their age and choose someone from a younger generation. The most important consideration is whether you trust them to respect and carry out your wishes.
  2. Would you also like to appoint a replacement attorney in case the people you have chosen are, for any reason, unable to act?
  3. Can you attorneys work together effectively? This ensures that decisions can be taken as quickly and amicably as possible.
  4. Would you like anyone to be informed in the event that your LPA is registered? These individuals would have the opportunity to challenge the implementation of the LPA if they considered it inappropriate or invalid.
  5. Would you like to express any instructions or preferences for your attorney(s) to consider, or give them guidance on aspects that you are concerned about?

Why are lasting powers of attorney important for equestrians?

You would always ensure that the stable yard was never without insurance in case of a fire. However, has it ever crossed your mind to ensure that the business itself could continue should you be unable to look after the yard, and its liveries?

Owning/ running a yard can be a dangerous business. Hazards are looming around every corner. From the threat of injury from a horse to the heavy machinery and equipment used around the yard.

Have a think about all the decisions you make regarding the day to day running of the yard.  Imagine, who would order and pay for shavings, hay, feed etc. collect rent from liveries, set up or terminate livery contracts, or pay staff if you were to lose your capacity?  Also, who would take care of your own horses?  If you don’t have a lasting power of attorney, then the answer is that no-one has the legal right to take over the reins from you in this situation (pardon the pun!).

Pictured: Chartered legal executive and equestrian Miranda Hawkes with her horse

Livery owners notoriously never retire as in most cases the business is ran from their home and so there is a strong possibility that mental incapacity may occur at some point due to either an accident or old age.

A lasting power of attorney for property & financial affairs allows you to appoint a person or persons to manage your affairs should you be unable to manage them yourself, or just get to a point where you no longer wish to worry about taking care of your finances yourself.

You can create separate lasting powers of attorney in relation to your business and personal affairs.  It would be advisable to appoint someone with equestrian knowledge to be your attorney for the livery business or you may end up with an order being placed for bag of peanuts rather than a bag of pony nuts!

You can also create a lasting power of attorney relating to your health & welfare which allows someone to make health decisions on your behalf, but only when you are unable to make them yourself due to lack of mental capacity. You may have a strong desire to stay at home with care being provided at home, should you become frail or unwell.  You may wish to have access to your horses and be in familiar surroundings.

A lasting power of attorney for health & welfare can detail all of these wishes for your attorneys at a time when you are unable to express these wishes to them.

For enquiries about equestrian lasting powers of attorney, contact Miranda Hawkes.

Contact Miranda

Business LPAs

Business LPAs

Do I need a Business LPA?

Any person with business interests be they company directors, partners, LLP partners or sole traders should consider putting business LPAs in place and encourage their business partners to do the same.

In some professions, a failure to put business LPAs in place may be a breach of your professional regulations.

What are the risks of not having a business LPA?

Due to discrimination law it is no longer possible to automatically remove a director on the grounds of mental incapacity despite any express agreement in the company documents. Therefore, in the event that you or your business partner loses capacity you/they can continue to bind the business to certain contractual obligations which may not be in the best interests of the business. Further, business accounts may be frozen leaving the business unable to operate the simple every-day tasks of paying bills and salaries.

To overcome this, an application to the court would be required to appoint somebody to manage your/their business interests which can take months by which time it is likely that the business may have suffered irreparable damage.

When can a business LPA be used?

It is up to you. You can specify that it can only be used in the event that you lose your mental capacity. Alternatively, you can give your attorneys power to act before this for example, if you are out of the country or temporarily unavailable due to illness.

What decisions can business attorney(s) make?

Business attorneys stand in your shoes as business owner and so can make any decisions relating to your business interests that you can make. Therefore, it is important that you appoint somebody who respects and understands the business and your aspirations for it.

Checklist

These are some of the things you may wish to consider before making a business LPA.

  1. Who would you like to appoint as your attorney(s)? You will probably want to appoint someone who is well organized and understands your how your business operates.
  2. Is your attorney independent? The appointment of your existing business partners is likely to cause a conflict with their own business agenda.
  3. Does your profession require certain accreditations or licensing which would restrict who would be qualified to take your place?
  4. Does your attorney get on with your business partners? This ensures that decisions can be taken quickly and effectively.
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