A power of attorney is a legal document where a person gives another person or persons (their attorney(s)) authority to make certain decisions on his or her behalf. An ordinary power of attorney will be automatically be revoked if the person giving the power (the donor) loses mental capacity. However, an LPA will continue even after any subsequent loss of mental capacity.
Types of LPAs
There are two types of LPAs:
- A property and financial affairs LPA: this gives your attorney(s) authority to deal with your property and finances as you specify. An unrestricted property and financial affairs LPA authorises your attorney(s) to make any decisions that you can make yourself about your property and finances, for example buying or selling property, managing bank accounts and investments or carrying on a business.
- A health and welfare LPA: this allows your attorney(s) to make health and welfare decisions on your behalf, only when 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. Health and welfare decisions include decisions about your healthcare and medical treatment, decisions about where you live and day-to day decisions about your welfare, such as your diet, dress or daily routine.
A power of attorney is an important document and you should take care whom you appoint as they should be trustworthy and have appropriate skills to make the proposed decisions.
If you appoint more than one attorney, you can appoint them to always act together (jointly) or together and separately (jointly and severally). You may even appoint them to act jointly for some things and jointly and severally for others, although this should only be done with advice, as it may cause problems when using the power.
You may also choose to appoint a successor to your attorney, in case they die or otherwise cannot act for you.
When can the attorney act?
Your attorney(s) will only be able to act when the LPA has been signed by you and your attorney(s), certified by a person that you understand the nature and scope of the LPA and have not been unduly pressured into making the power. The certificate will also need to confirm there has not been any fraud or another reason why you cannot make the power. It must then be registered with the Office of Public Guardian (the OPG) before it can be used.
The financial LPA can be used both when you have capacity to act (like an ordinary power of attorney), as well as if you lack mental capacity to make a financial decision. The health and welfare power can only be used if you lack mental capacity to make a welfare or medical decision.
Revoking your LPA
You can cancel your LPA at any time before or after it is registered as long as you have the mental capacity to do so. You must tell your attorney(s) if you do this and, if your LPA is registered, you must ask the OPG to remove it from their register.
What happens if you have not made a power of attorney?
Property and financial affairs
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf. This is both costly and time consuming and the person appointed to make decisions on your behalf may not be the person you would have chosen.
Health and welfare
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.
How Can We Help?
At Jackson Longe Solicitors, our service in this regard covers advice, preparation of the documents and registration at the Office of Public Guardian.
Our senior solicitor also accepts instructions as a professional Property and Affairs attorney in appropriate cases.
We offer a fix fee service starting from £295 plus VAT for Lasting Powers of Attorneys and will act as a certificate provider if required. For more information, please contact us on 0208 332 2069 or by email email@example.com