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Insights // 02 December 2021

What is a Lasting Power of Attorney?

Solicitor Kirsti Harvey, in our leading Wills, Probate, Tax & Trusts team, explains the role of a Lasting Power of Attorney (LPA), why they are an important document and how they can help and provide peace of mind for you and your family.

The COVID-19 pandemic has touched the lives of everyone, here in the UK and beyond. In 2020, over one million people in the UK volunteered to support the NHS, while many others have continued to look out for and help loved ones and those in their community.

Now more than ever, many individuals and their families will continue to rely on Lasting Powers of Attorney (LPAs) as vitally important documents, allowing important decisions to be taken on behalf of those who are unable to make choices for themselves.

Lasting Powers of Attorney

An LPA is a legal document whereby you give another person(s) (known as an attorney(s)) the ability to make certain decisions on your behalf.

There are two types of LPA:

  • A Property and Financial Affairs LPA, which allows your attorney to deal with your property and finances, as you specify. A Property and Financial Affairs LPA can be used by your attorneys whilst you retain capacity, with your consent.
  • A Health and Welfare LPA, which allows your attorney to make welfare and healthcare decisions on your behalf, but only if you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment (for example putting a ‘Do Not Resuscitate’ (DNR) in place).

The authority will continue throughout the Donor’s lifetime, provided that the LPA is not revoked.

Existing Enduring Powers of Attorney (EPA)          

Any EPA, made before 1 October 2007, will remain valid but only in respect of your property and affairs. If you wish to give authority over your health and welfare to an appointed attorney(s) you will need to make an appropriate LPA.

If you have any investments which are held in a discretionary management scheme (e.g. a stock and shares ISA), it may be worth reviewing your EPA to ensure that it meets your needs.

When and why should you make an LPA?

A range of leading surveys have indicated that around three quarters of people in the UK do not have an LPA in place.

Many people perceive that an LPA is something to only consider when elderly or faced with a serious health issue but none of us know what the future holds. An LPA can only be made when the Donor (the person making the LPA) has capacity and therefore leaving it until the document is actually required may be too late.

A person may be left mentally incapacitated or diagnosed with a serious illness at any stage in life, for example due to a brain injury caused by a car or sporting accident, or as a result of Dementia or Cancer. The Alzheimer’s Society predicts that over 1.6 million people in the UK will be diagnosed with Dementia by 2040. 209,600 will develop Dementia this year, that’s one every three minutes. Today one in six people over 80 are living with Dementia. However, Dementia does not only effect people in later life, there are also 42,000 people in the UK aged under 65 living with Dementia. Cancer Research UK estimates that one in two people will be diagnosed with Cancer, which sadly can happen at any age.

We advise clients at every stage in life, particularly when writing their Wills, to consider putting an LPA in place so they can rest assured that their wishes and loved ones’ interests are taken care of in the future.

Choosing an Attorney(s)

Careful consideration should be given when choosing your attorney(s). It should be someone who you consider trustworthy and to have the appropriate skills to make decisions in your best interests. You may appoint more than one attorney and you may also choose to appoint a successor to your attorney, in case they die or otherwise cannot act for you. You could appoint a family member or friends or alternatively, you could appoint a professional Attorney such as a Solicitor or Accountant.

The Role of an Attorney

Property and Financial Affairs LPA

Provided there are no restrictions or conditions, the standard form Property and Financial Affairs LPA allows your Attorneys to make decisions about anything that relates to the donor’s property and finances, such as:-

  • Dealing with bank accounts;
  • Claiming benefits and pensions;
  • Dealing with tax affairs;
  • Paying the Donor’s rent, mortgage and household expenses;
  • Paying for medical care;
  • Managing investments and much more.

Attorneys have a limited power to make gifts on behalf of the Donor in limited circumstances. For any large or unusual gifts an application to the Court of Protection will be required. Attorneys should keep full accounts and records of their actions when acting as Attorney and ensure that the Donor’s assets are protected.

An Attorney is required to act in accordance with the Mental Capacity Act 2005 and the Code of Practice. The Attorney must ensure that they always act in the best interests of the Donor.

If a third part is concerned about the behaviour or any actions of an Attorney, then they can contact the Office of the Public Guardian who will investigate and take actions if necessary.

Health and Welfare LPA

Under a Health and Welfare LPA the Attorneys can make decisions about things such as the Donor’s daily routine (washing, dressing and eating), medical care and where the Donor lives.

The Donor can choose whether or not to give the Attorneys authority to give or refuse consent to life sustaining treatment. Life sustaining treatment could include medicine or surgery.

What happens without an LPA?

If you lack capacity to make decisions, then it may be necessary for an application to be made to the Court of Protection for an appropriate order. This is both costly and time consuming may impact on you and those around you.

Having an LPA in place can instead provide ease and reassurance for you and your loved ones.

Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes you can give a person(s) authority to make those decisions on your behalf by making a Health and Welfare LPA.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Kirsti Harvey

Kirsti Harvey

Solicitor, Wills, Probate, Tax & Trusts

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