What is a Lasting Power of Attorney?
What is a Lasting Power of Attorney? (LPA)
A Lasting Power of Attorney (LPA) is a document which enables the donor (the person who takes out the LPA), to authorise someone else (the ‘attorney’) to manage their affairs. This can be for reasons of ill-heath or inability to manage one’s affairs due to other reasons, such as loss of mobility. None of us knows exactly what is around the corner. You could have an accident, a stroke or a heart attack that incapacitates you for the foreseeable future. Unfortunately, more and more people are being diagnosed with dementia and Alzheimer’s disease every year.
If you lose mental capacity and you do not have a Financial and Property LPA in place then you may find that your bank account is frozen and that you may not be able to sell your house. Without a Health and Welfare LPA the people closest to you may not be able to make sure that your wishes, eg relating to end-of-life care, are carried out.
One way of looking at an LPA is as a type of insurance policy as it is effectively a way of protecting your interests if the worst should happen.
The difference, of course, is that there is no annual premium – there is a one-off fee for registering an LPA and provided that you have mental capacity you can revoke it if circumstances change in the future.
There are two types of Lasting Powers of Attorney.
Financial and Property LPA
A Financial and Property LPA could be used to allow your attorney to make withdrawals from and payments to your bank account, pay bills and handle your expenses. This can make things much easier for you as, for reasons of data protection and confidentiality, financial and other institutions will not discuss your account or personal details with anybody else without your permission, not even your spouse. This can prove to be very impractical and in cases where you may have lost mental capacity, impossible.
You can stipulate in your LPA the extent to which an individual is able to have control over your affairs and the LPA can be revoked at any time provided you still have mental capacity. For example, if you have an accident that incapacitates you for a while, the LPA can be invoked until such point that you are able to take over again.
You don’t have to be mentally incapacitated for this particular type of LPA to take effect.
Health and Welfare LPA
A Health and Welfare LPA will enable you to have a voice through your Attorney. You can authorise them to make decisions about your care, where you live and what medical treatment you should or should not receive if you are unable to do so yourself (eg whether you should receive life-sustaining treatment). However, you will be able to specify in the LPA what your Attorney can and cannot do.
Whichever LPA you choose – and you can have both – your Attorneys must always have your best interests at heart. It is, however, important that your completely trust the Attorneys you choose. Often, they will be close family members.
For advice on Lasting Powers of Attorney contact Diane Massey on 01925 937070 or email her direct at dianemassey@dsmlegal.co.uk
Registering your Lasting Power of Attorney
The donor can request that the Financial and Property LPA is effective immediately it is registered but the Health and Welfare LPA is only effective once the donor has lost mental capacity.
The Office of the Public Guardian must be notified of the following change of circumstances:-
- if you or an attorney change name or address
- an attorney dies
Mental capacity
It is important to be aware that a donor cannot enter into an LPA unless they have the mental capacity to do so. It is therefore essential once a decision has been made to take out an LPA to do so as soon as possible.
If there is any doubt about mental capacity, for example if a person is in the early stages of dementia, then your solicitor will contact your doctor for confirmation that you understand what an LPA is and the consequences of entering into one.
What happens if I delay?
If delay results in mental capacity being lost, then an application to the Court of Protection to appoint a Deputy would have to be made. This is a much more lengthy and expensive procedure than taking out an LPA.
Aside from the issue of mental capacity it is likely that legal fees and Court fees would increase at some future point, rather than decrease.
What is the cost of a Lasting Power of Attorney?
We are experienced in setting up Lasting Powers of Attorney and make the process straightforward for you. An LPA is designed to give you support and complete peace of mind for the future as it is there if and when you need it.
We will provide you with a firm quote based upon your individual requirements which could include:-
- Taking initial instructions
- Drafting the necessary documentation
- Acting as Certificate Providers – this must be done by certain professionals or someone who has known you for at least two years.
- Witnessing your signatures
- Witnessing your attorney’s signatures
- Home visits (if required) – free
- Registering the LPA
An LPA is a very important and powerful legal document. An LPA can be challenged by a third party (eg a care worker, social worker or a relative) on the grounds that it isn’t legally valid; this is why it is so important to ensure that the person drafting the LPA and the certificate provider are competent and reliable.
Allegations of fraud or undue pressure can be raised.
Such objections can lead to delay and frustration and may result in the Office of the Public Guardian carrying out investigations and referring the matter to the Court. If that happens then your certificate provider will have to provide evidence to confirm that they were satisfied that you had mental capacity at the time of entering into the LPA and were not forced into making the LPA. 
At DSM Legal we will take steps to check that there is no fraud or undue influence thereby avoiding unnecessary delay, expense, and anxiety.
Contact us on 01925 937070 or email dianemassey@dsmlegal.co.uk for further information or advice about your Lasting Power of Attorney.
We work directly with you to create a legal and effective LPA that is tailored for your needs.
We can provide home and hospital/care home visits to talk everything through with you.
Our offices, in Westbrook, Warrington has free on-site parking for visitors or, if you prefer, we can arrange remote meetings by Zoom.
