A Lasting Power of Attorney (LPA) is a legal document that allows you, ‘the donor’, to appoint a person or persons to make decisions on your behalf.  These persons are known as your ‘attorney(s)’.

An LPA is separate to a Will and is valid only during your lifetime.  Your attorneys are able to make decisions for you in the event that you lose your ability to manage your personal affairs, which might be due to illness, or physical or mental incapacity.

There are two types of Lasting Power of Attorney:

• A Property & Financial Affairs LPA – this enables your attorneys to make decisions on your behalf in relation to your financial affairs such as your bank accounts, bills and pension.  They can also carry on your business and deal with decisions relating to your property including authorising its sale or transfer.

• A Health and Welfare LPA – this enables your attorneys to make decisions about social care issues including your living arrangements, daily routine and medical care (including life sustaining treatment).

You do not have to appoint the same people on both LPA’s, but your attorney should be someone that you know and trust to act in your best interests.  You may choose more than one attorney, however, if you do choose more than one, you must decide if your attorneys are to act together, or whether they can also act independently of one another.

You can appoint a replacement attorney in your LPA who will act if the initial attorney is unable to act, has died, or their appointment is revoked for any reason.   Your chosen attorney and any replacement attorney must sign the LPA to indicate their willingness to take up the role.

Your attorneys have a legal duty to act in accordance with the principles of the Mental Capacity Act 2005 and to have regard to the Code of Practice accompanying the Act.  An attorney must be over 18 years of age.  An individual who is bankrupt cannot be appointed as an attorney under a Property & Financial LPA.

An LPA can be created at any time while you have mental capacity but it can only be used after it has been registered with the Office of the Public Guardian (OPG), which is a Government body.

After registration, your attorneys can use a Property & Financial LPA before you lose mental capacity to manage your affairs and after you have lost capacity.  Your attorneys will however only be able to use the Health & Welfare LPA once you are no longer able to make Health & Welfare decisions for yourself.  Your attorneys will have no power to consent to or refuse life-sustaining treatment unless the Health & Welfare LPA gives them express authority.

It is possible to impose restrictions on what your attorneys can do.  Examples of this may be restricting the assets your attorneys can deal with, excluding your attorneys’ ability to make gifts on your behalf, or specifying that your LPA can only be used once you have lost capacity.

You can also include specific guidance for your attorneys to follow.  Such guidance can be in the LPA itself or in a letter of guidance, but the latter will not be binding on your attorneys.

You can specify people who should be notified before your attorneys can register the Lasting Power of Attorney and use it.  This gives the people you have named the right to object to the registration of the LPA.  This is optional, but it does add a layer of protection.

You will need a ‘certificate provider’ who will sign your LPA and state that they are satisfied that they believe you understand the document and that you are not under any under pressure to make an LPA. Where appropriate, we can act as your certificate provider.  Alternatively, if your health is in question it may be wise to ask your doctor to give the certificate.

An LPA is a deed – you cannot make any changes to a signed, witnessed and certified LPA however you can revoke your LPA at any time whilst you still have capacity.  Revocation must be in the prescribed form, known as a Deed of Revocation.

The Office of the Public Guardian currently charges £82 to register each LPA, or less if you’re getting a means-tested benefit or on a low income.  It is optional whether you register your LPA at the time it is made or at a later date, however we would always recommend registering it immediately following its execution to avoid delays later.

Creating an LPA gives you the reassurance that you know who will help you manage your affairs or make decisions on your behalf if you cannot manage such decisions for yourself.  Without an LPA, no one has the automatic right to make decisions on your behalf. They would need to make an application to the Court of Protection to get permission and this can cost significantly more than the cost of making an LPA and takes considerably more time.

It is essential that the LPA documents are drafted accurately and witnessed properly and in the correct order.

We provide practical guidance throughout the LPA creation and registration process to allow you to focus on the important aspects and ensure that each document suits your specific requirements.