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Everything you need to know about Lasting Powers of Attorney

Lasting Powers of Attorney

What is an LPA?
A Lasting Power of Attorney or LPA is a legal document that lets you, the donor, appoint one or more people, known as ‘attorneys’, to help you make decisions or to make decisions on your behalf when you are no longer able to do so.
This gives you more control over what happens to you if, for example, you have an accident or an illness and can’t make decisions at the time they need to be made (you ‘lack mental capacity’).

ou must be 18 or over and have mental capacity (the ability to make your own decisions) when you make your LPA.

There are 2 types of LPA:

  • Property and financial affairs
  • Health and welfare

Property and financial affairs Lasting Power of Attorney
This LPA gives an attorney the power to make decisions about your money, personal belongings and your property, for example:​

  • managing a bank or building society account
  • managing investments
  • paying bills
  • collecting benefits for a pension
  • selling your home
  • making gifts

This LPA can be used as soon as it is registered unless you state otherwise. It can be used if you still have mental capacity, but would like help from your attorney, as well as if you have lost mental capacity.

If you own a business, you can also put in place a separate Lasting Power of Attorney appointing someone to handle your specific business decisions on your behalf. This may be somebody different to the person you would like to handle your personal financial affairs.

Health and welfare Lasting Power of Attorney

​This LPA gives an attorney the power to make decisions about things such as:

  • your daily routine e.g. washing, dressing, eating
  • medical care
  • medical treatment and medication
  • moving into a care home
  • life-sustaining treatment

It can only be used when you have lost capacity and you’re unable to make your own decisions either temporarily or permanently.

How to make a Lasting Power of Attorney
In order to make either type of LPA you must complete the appropriate forms. They must be signed by you, your attorneys and a certificate provider, and then finally registered with the Office of the Public Guardian.

Before completing the forms there are lots of things for you to consider to make sure the document is correct for your circumstances and works for you and your family.

  • Choosing your attorney; You need to think carefully about who you would like to be your attorney. It should be someone who you trust implicitly to look after your affairs in your best interest and someone who knows how you feel about important matters. Your attorney needs to accept their appointment so it is a good idea to sit down and have a chat with them about this first.  Your attorneys can be friends, family, partners or trusted professionals.
  • Choosing how your attorneys will act; You can choose how you would like your attorney’s to act. This can either be;
  • Jointly – where all decisions need to be made in agreement between all the attorney’s 
  • Jointly and Severally – where each attorney can act individually on their own in respect of all actions as well as all attorney’s acting together
  • Jointly for some decision and severally for other – you can direct in the document which decision must be made jointly and which can be made individually by your attorneys

It is important this is considered carefully as depending on your attorney’s and the option chosen your LPA could stop working sooner than you think.

  • Appointing replacement attorneys: It is possible to appoint replacement attorneys who only have power to act under the document should your original attorneys be no longer able to act either through death or other circumstances such as illness. A common example is for a married couple to appoint each other as their original attorney with their children as replacement attorneys
  • Deciding on any instructions and preferences It is possible to leave instructions to your attorneys to either legally oblige them to do something on your behalf or merely direct them as to what you would like them to do if possible The instructions given will depend on whether the LPA is for your health and welfare or your financial affairs but could cover things such as when your house can be sold, which care home you would like to move too, what charitable donations you would like to continue etc It is quite common to leave the instructions blank and allow your attorneys to have complete flexibility. This is why it is important to choose your attorneys carefully. It is very important that any instructions given are worded correctly as badly drafted documents could be invalid or could limit how your attorneys can act more than you appreciate at the time
  • Life Sustaining Treatment When making a Health and Welfare LPA it is possible to give your attorneys the power to accept or refuse life sustaining treatment on your behalf. 
  • Notifying interest parties It is possible, although not essential, to notify people that you are making an LPA. This allows people who are interested in your welfare to raise any objections if they think there are any suspicious circumstances.  In certain circumstances it can help protect you and your family from future conflict or contentions if the appropriate people are notified. 

Why now?
You should not wait until you are concerned that you might be getting forgetful or are losing mental capacity as it could already be too late at that stage. Capacity can be lost instantly. An LPA can be seen as a type of insurance policy against this possibility that you might want help managing your affairs in the future.
There are two legal routes to follow where mental capacity is concerned. The most cost effective way is to put an LPA in place while you still have capacity. Not only is this the simplest way it is also the only way where you get to choose your attorney.
When capacity has been lost then it is too late to make an LPA. The only route to access finances or to deal with health and welfare issues is through the Court of Protection. This is a far more complicated, expensive and time consuming process. You will not have any control over who makes the application, the process or the Order(s) made by the Court of Protection.
​The "Lasting" bit specifically refers to the fact that the LPA lasts beyond incapacity. So if you become either permanently or temporarily incapable of managing your affairs, then the LPA can be used.

This won't happen to me!
With today's increasingly ageing population dementia related illnesses are on the increase.
It's not just for the elderly! If as a result of an accident or a medical condition you suffer a brain injury then you may temporarily lose your capacity. Car accidents or Sports injuries resulting in concussion can be one way where anyone at any age can lose capacity.

Couples
Although many couples have jointly owned assets, in a lot of cases couples will still maintain separate bank accounts often for tax reasons such as to take advantage of ISAs.
If all assets are in joint names and one partner suffers from a dementia related illness then in reality their partner can still access funds to pay the bills, buy food, fix the roof etc.
However with separate funds it can sometimes lead to distressing situations where the bank will not allow you to access your partner's funds should they lose capacity. We have also been made aware of instances where banks have frozen joint accounts in certain circumstances.

Additional Notes
You can cancel your LPA at any time if you no longer need it or want to make a new one so long as your still have mental capacity,
The LPA ceases to work on death. At this point the power to deal with your affairs vests in your Executors, if you have a valid Will, or your next of kin. On your death your attorneys must return the LPA to the Office of the Public Guardian for it to be cancelled officially.
Neither LPA gives your attorney the right to access or change your Will.

How we can help
As professional experts we can explain the risks of LPAs and also how to protect yourself, so that you fully understand what the process involves.

For a fixed cost we can;

  • Complete the documents with the details required
  • Advise on individuals circumstances and instructions and ensure the documents as drafted meet these criteria
  • Sign the document as your certificate provider
  • Register the document with the Office of the Public Guardian
  • Safely store the registered documents in our safe for no ongoing charge
  • Provide certified copies to you and your attorneys as required and instructed

It is possible to apply for an LPA yourself through the Office of the Public Guardian, however, as you can there are lots of things to think about when completing the document and if you make a mistake then you may have to submit a further application with extra fees.

Tuesday, January 21, 2025

Specialists in Wills & Probate in Stockport, South Manchester & North Cheshire.

By entrusting BJ McKenna and Co with your matter, we assume the role of Personal Representative, handling all associated duties on your behalf. You can rest assured that a skilled professional will safeguard your best interests throughout the process.

​If you have any questions, please don’t hesitate to reach out.

By entrusting BJ McKenna and Co with your matter, we assume the role of Personal Representative, handling all associated duties on your behalf. You can rest assured that a skilled professional will safeguard your best interests throughout the process.

​If you have any questions, please don’t hesitate to reach out.

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