What is a Lasting Power of Attorney?

Have you ever taken time to consider what might happen if you lost the mental ability to function for yourself? Nobody wants to think about the worst things that can happen in life, but it can take only a moment for something like a stroke, heart attack or other medical incident to leave you unable to make your own decisions, not just on your personal affairs but also in relation to your medical treatment and welfare. Whilst the onset of an illness such as dementia or Alzeimer’s disease can take place much more slowly, it can also leave you powerless to look after your best interests. Luckily, there is a way to ensure that your best interests are always protected – a lasting power of attorney.

What is a lasting power of attorney?

A lasting power of attorney (LPA) gives another person or persons (known as your “attorney(s)”) the authority to act for you if you are unable to do so yourself. That authority continues even if you lose the mental capacity to make decisions for yourself. If you do not have an LPA in place and you lose mental capacity, it will be necessary for someone to make an expensive and time consuming application to the court in order to act on your behalf. This can take several months and it is not uncommon for it to take 6-9 months.

Types of Lasting Power of Attorney

There are two types of LPA, namely:

1. Property and financial affairs.
2. Health and welfare.

You can have either or both types of LPA.

1. LPA for property and financial affairs

This type of LPA allows your attorney to deal with your financial affairs, for example to pay your bills, sell your property or investments and operate your bank accounts. Unless you specify otherwise in your LPA, your attorney can use your LPA while you still have capacity to make financial decisions yourself. If you allow your attorney to make decisions before you have lost mental capacity, it does not mean that they automatically take all financial decisions for you, it just means that they can take these decisions if you allow them to at the time. This can be helpful if you are unwell or on holiday for an extended period of time.

2. LPA for health and welfare

This type of LPA allows your attorney to make decisions about matters such as your medical treatment, your diet, where you live and how you spend your time. Unlike the LPA for property and financial affairs, your attorney can only use it when you have lost the mental capacity to make decisions yourself.

Your attorney cannot make decisions about life-sustaining treatment unless you specifically allow this in the LPA. Life-sustaining treatment includes ventilation to help with breathing, feeding through a tube and resuscitation.

Who will act as my attorney(s)?

You must only appoint people that you can trust to act as your attorney(s). You should consider the following categories of people when deciding who to appoint:

• Family members.
• Professional advisers such as a solicitor or accountant (this category is generally only appropriate for LPAs for financial decisions).

You should also consider practical issues such as whether it would be better to have an attorney who is geographically close to you (this might be less relevant, for example, for an LPA for financial decisions if you deal with all of your finances online). You should also consider the time, skills and expertise that each attorney has in relation to what they may need to do. If you choose to appoint professional attorneys you will need to pay them for acting as attorney but you can also pay other attorneys if you wish.

Can I have more than one attorney?

It is possible to appoint more than one person to act as your attorney. You can also appoint replacement attorneys. This is useful as an insurance policy in case one of your attorneys cannot act.

You can appoint more than one attorney in the following ways:

• Jointly: If you appoint attorneys to make decisions jointly, then they can only act together. This may prove inconvenient, particularly for day-to-day decisions. Your LPA will be redundant if one of the attorneys can no longer act unless you have appointed a replacement for your joint attorneys.
• Jointly and severally: If you appoint attorneys to make decisions jointly and severally, they may act either together or independently. This provides more flexibility than appointing attorneys to act jointly and means that the remaining attorney(s) can continue to act even if one of them becomes incapable of doing so. The downside of this flexibility is that one attorney may act in a way that the other attorney(s) would not endorse. Arguably, however, you should not appoint an attorney to act at all if you don’t trust that person to act alone.
• Jointly when making some decisions and jointly and severally when making other decisions: This option may provide a compromise between allowing sufficient flexibility for attorneys to act independently in relation to day-to-day matters and jointly in relation to more important decisions. You will need to decide which decisions the attorneys have to take jointly.

How do I register an LPA?

You or your attorneys can register your LPA with the ‘Office of the Public Guardian’ (OPG) at any time. However, your attorney(s) can only use your LPA to make decisions on your behalf after it has been registered.

Advantages of immediate registration:

• The OPG checks the LPA as part of the registration process and therefore any problems will be found immediately. If the LPA is not registered until you have lost capacity, you won’t be able to rectify any errors and the LPA may be invalid.
• The LPA is ready to use if it is needed in the future. As the registration process can take approximately 8-10 weeks, delaying registration until you lose mental capacity can cause an inconvenient delay when the LPA is required.

For the reasons stated above we would always recommend that any LPAs are registered immediately.

To find out more about lasting powers of attorney or to discuss any other private legal issues, don’t hesitate to get in touch with our private client expert Steven Smith: