Power of Attorney

What a lasting power of attorney does

A lasting power of attorney (LPA) is a document that allows someone to appoint up to four people to make decisions and act on their behalf. These people are known as ‘attorneys’ and the person entering into the LPA is called the ‘donor’.

There are two types of LPA – a property and finance LPA and a health and welfare LPA. As may be expected, a property and finance LPA will authorise attorneys to assist with financial matters whilst a health and welfare LPA will authorise them to make decisions relating to medical and care decisions.

All LPAs need to be registered with the Office of the Public Guardian (OPG) before they can be used. The Office of the Public Guardian is a government body that monitors attorneys and ensures that they are complying with their duties.

Decisions attorneys can make

It is not necessary to have both types of LPA, however, they are both very useful documents. A property and finance LPA can allow attorneys to assist with such matters as accessing bank accounts to ensure that people are provided with money for day-to-day living expenses, managing direct debits, dealing with investments and even selling property on the donor’s behalf.

A health and welfare LPA, on the other hand, will allow the attorneys to make decisions relating to what medical treatment the donor should receive and take day-to-day care decisions such as the location of their care home and even what the donor should wear each day. A donor can also decide whether or not they want to give their attorneys the power to make decisions about life sustaining treatment on their behalf.

When can attorneys make decisions and can their powers be limited?

The donor can decide when they want the attorneys to begin making decisions and they are also able to limit the powers that their attorneys have. A health and welfare LPA can only be used by the attorneys when the donor is no longer able to make the required decision themselves (this is called “losing capacity”).

Loss of capacity is specific to each decision that needs to be made and attorneys are under a duty to always involve the donor as much as possible in any decision they make. For example, just because the donor is unable to evaluate the benefits and risks of two different courses of cancer treatment, it does not mean that they cannot pick out what socks they want to wear that day; and their attorney has a duty to consult them on both of these decisions.

A property and finance LPA, on the other hand, can be used by the attorneys as soon as it is registered, if that is what the donor prefers. Allowing immediate use can give the donor peace of mind as they can delegate their affairs to their attorneys even though they still may be able to manage things themselves. It is also useful if the donor is intending to leave the country or is expecting to be confined to a hospital for a prolonged period.

It is possible to include instructions to the attorneys in both types of LPA which can prevent them from acting in certain ways. For example a donor could prevent their attorneys from agreeing to certain types of treatment or from accessing certain bank accounts or investments. It is also possible to include preferences in the LPAs which are not binding on the attorneys but can allow them to better understand the donor’s wishes.

Why do you need a lasting power of attorney?

People often ask what their position would be if they were to lose capacity without an LPA in place. The short answer is that there would not be anyone legally authorised to make decisions on their behalf. This can create serious problems for people - especially when it is necessary to access bank accounts to provide living expenses, or where there is a property that needs to be sold in order to fund care home fees.

In these circumstances it will usually be necessary for someone to apply to the Court of Protection to be appointed as a ‘deputy’, in order to authorise them to assist the person who has lost capacity. This can be a lengthy, expensive and onerous process.

If there is no health and welfare LPA in place then the medical or care team will make the healthcare decisions on behalf of a person who has lost capacity. They will usually try and take the family’s views into account however, without an LPA in place, it can be difficult for them to know who the donor would have wanted to have a say about their care. We frequently see instances where families feel that they have been left out of the decision making process for their loved one’s care.

Do I need an LPA when I have an EPA in place?

Another question that we are frequently asked is whether an LPA is necessary when there is an enduring power of attorney (EPA) in place. An EPA is an older document and it has not been possible to create new EPAs since October 2007. Any EPA that was created before this date can still be registered and used. They will only apply, however, to decisions relating to property and finance; they will not allow an attorney to assist with health and welfare decisions.

In addition, an attorney can only act under an EPA when the donor has lost capacity. This means that an LPA will be more suitable if the donor wants their attorneys to assist them before they lose capacity, or if they want help with health and welfare decisions.

Can I have different attorneys?

It is possible to appoint different attorneys for the two different LPAs. It is also possible to appoint professional attorneys - such as an accountant or a solicitor - and they can bring considerable experience to the role; especially where there are complex investments to manage or tax and financial issues to consider. However, they will usually charge for acting as an attorney.

Can I complete the Lasting Power of Attorney myself?

You can complete the Lasting Power of Attorney documents yourself and register them with the Office of the Public Guardian, however, many people do find that the registration process can be more complex than they anticipate due to Office of the Public Guardian’s stringent requirements. We are always happy to assist with the preparation of the forms and provide impartial advice on the contents.

It is sometimes particularly advisable to instruct a solicitor to prepare the Lasting Powers of Attorney, for example where are family disagreements  which could lead to the attorney’s authority being challenged after registration or where you have specific instructions or preferences that you would like to include.

How to get a lasting power of attorney

Once the LPA has been drafted it will need to be signed by the donor and by all attorneys in front of an independent adult witness. In addition, a certificate provider (a professional such as a medical practitioner or a solicitor or someone who has known you for more than two years) will need to sign to confirm that you have capacity to enter into the LPA.

The signed LPA then needs to be sent to the Office of the Public Guardian to be registered, along with the registration fee (currently £82 per LPA). And an LPA has to be registered before the attorneys can use it.

Can I change or cancel my lasting power of attorney?

So long as the donor has capacity it is possible for them to revoke their LPA by sending a deed of revocation to the Office of the Public Guardian. They can then apply for a new one so long as they still have capacity.

Minor changes, for example to an attorney’s name or address, can be dealt with by writing to the Office of the Public Guardian to update them. An attorney, however, does not have the power to change the will of the donor or to revoke the LPA.

Advanced decision (aka a ‘living will’) vs lasting powers of attorney

An advanced decision, or living will, is a signed declaration that a person does not wish to have certain forms of medical treatment. It is binding on medical professionals. It cannot, however, specify treatment that the person can receive. For example, you can create a living will that states that in the event that you are diagnosed with terminal cancer - and you are unlikely to survive - that you do not want to undergo chemotherapy; or should you be in a coma - and unlikely to regain consciousness - then you would not want to undergo PEG feeding (being fed through a tube). You cannot, however, state that you would like a certain drug to be administered during any treatment.

A health and welfare LPA can contain such directions, as instructions to the attorneys, so long as the donor has decided to grant their attorney the right to make decisions relating to life sustaining treatment on their behalf.

It is possible to have both documents. If a health and welfare LPA was created after an advanced decision - granting attorneys the right to make decisions regarding life sustaining treatment - then the attorneys will not be bound by the advanced decision (although they would need to have a good reason to justify straying from the donor’s known wishes). If an advanced decision is made after the LPA the advanced decision will be binding on attorneys.

General powers of attorney

A general power of attorney covers decisions about financial affairs and is valid while the donor has mental capacity. It is suitable if cover is needed for a temporary period (for example a hospital stay or holiday); or if the donor finds it hard to get out, or wants someone to act for them - for example to deal with the sale of a property or business whilst they are out of the country or otherwise unavailable.

A general power of attorney does not need to be registered so it can be used as soon as it is signed by the donor. It cannot, however, be used for health and welfare decisions. And it does not continue to be effective after the donor has lost capacity.

Our expertise in powers of attorney

At LCF Law we have a highly experienced team that has decades of experience in applying for EPAs, LPAs and drafting general powers of attorney; as well as acting as professional attorneys for an extensive range of clients in many different situations.

Our services include:

• Taking detailed instructions and advising on the contents of LPAs;
• Drafting and executing general powers of attorney, advanced decisions, LPAs and dealing with their registration at the Office of the Public Guardian;
• Dealing with the registration of EPAs;
• Acting as professional attorneys for both property and finance LPAs and health and welfare LPAs; and
• Advising on the duties of attorneys and dealing with any disputes that arise between attorneys.

As well as having extensive experience and knowledge, we are also great listeners and work hard to really understand your circumstances and provide the most appropriate advice and support in order to give you complete peace of mind.

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