What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal mechanism by which you ('the donor') can appoint one or more persons ('donees') to act on your behalf. The 'Lasting' element of these Powers means that you can appoint someone to make decisions on your behalf should you lose the mental capacity to make such decisions at some future time. Lasting Powers of Attorneys replaced Enduring Powers of Attorney from October 2007.

There are two types of LPA:

• Personal Welfare LPA - whereby you appoint one or more person(s) to make decisions in relation to your personal welfare;
• Property & Affairs LPA - whereby you appoint one or more persons to make decisions on your behalf in relation to property and affairs.

What types of decisions can be made under a Personal Welfare LPA?

Personal welfare decisions are those that pertain to your welfare, such as medical decisions (giving or refusing consent to medical treatment but not 'end of life' decisions);

• decisions as to where you live and with whom;
• accessing personal information such as medical records;
• deciding what you wear, what you eat and how you spend your day.

What types of decisions can your Donee(s) make under a Property & Affairs LPA?

A donee under this type of LPA can make any decision you can make regarding your property and affairs, such as;

• buying or selling property;
• managing investments;
• running a business;
• accessing and using your banks accounts;
• obtaining financial information.

When does the Power operate from?

A Property & Affairs LPA can operate from the time you make it should this be what you would prefer.

A Personal Welfare LPA will only ever be able to be used where you do not have the mental capacity to make that decision yourself.

However, before either type of LPA can be used, it must be registered with the Office of the Public Guardian.

Who can you appoint as your Donee(s)?

• You can appoint up to a maximum of 5 donees.
• For a Property & Affairs LPA, you can appoint one or more persons of 18 years or older and/or a trust corporation.
• For a Personal Welfare LPA, you can appoint one or more persons of 18 years or older.
• You should ensure that the persons you choose are individuals whom you trust completely, and who will act in your best interests.

How will the Donees make decisions if you appoint more than one person?

You can specify in the LPA that your donees can act:

• jointly - i.e. your donees must act together and make joint decisions;
• jointly and severally - i.e. each donee can act individually and the donees can also act together or
• jointly in respect of some matters and jointly and severally in respect of others.

Can you place restrictions on a Donee(s)?

Yes.  You can specify in your LPA matters which you do not wish your donee to have the power to make decisions about.  You can also place additional duties on your attorneys, e.g. under a Property & Affairs LPA, you may wish your donee(s) to provide annual accounts to you.

There are some restrictions placed on your donee(s) by law.  For instance, a donee can never consent to your marriage.

What are the Donee(s)' duties?

• It is a donee's duty to act in your best interests at all times
• A donee should also comply with the principles of the Mental Capacity Act 2005.
• Your donee(s) must act within the scope of their authority as set out in the LPA.
• Your donee(s) have a duty to assist you in making as many decisions as you are able to make yourself.
• Your donee(s) should discuss with you the duties they are taking on under the LPA and should familiarise themselves with your wishes and feelings.
• Your donee(s) should also take into account any guidance you have specified within the LPA (even though this is not legally binding on them).
• A donee must also have regard to the Code of Practice.

Can an LPA be cancelled or changed once it has been made?

Yes.  You can change or revoke your LPA at any time, provided you have the mental capacity to do so.

Why make an LPA?

It allows you to specify in advance who you wish to make decisions for you, should you ever lose the capacity to make these decisions yourself.  In this way, you get to choose who makes those decisions for you, rather than having the Court or someone appointed by the Court making those decisions on your behalf. 

If you should lose the mental capacity to manage your finances and affairs, your family will not automatically have legal authority to step in and manage your affairs.

How can we help?

If you would like to make a Lasting Power of Attorney, we can advise you on the options available and prepare the appropriate documents.

If you are a donee under a Lasting Power of Attorney, or an attorney under and Enduring Power of Attorney, we can advise you as to your duties and obligations and powers.  We can also help you with any applications you are required to make to the Court of Protection.

We can apply to the Court of Protection to register Enduring Powers of Attorney or Lasting Powers of Attorney.

Our usual charging rates will apply and fees will be charged in accordance with the amount of time spent dealing with your instructions.