“A Will only operates after you have passed away. A Lasting Power of Attorney protects you while you are alive.”

Simon Greener LLB
Director, Solicitor

Simon Greener LLB

What is an LPA?

There may come a time in our lives when we are no longer capable of making our own decisions. This could be because of old age, but it could also be because of a serious accident, or an unexpected illness. None of us can be sure of what the future holds for us. If such an event does happen, the medical, legal and practical effects can be far-reaching and cause severe problems for our loved ones who are left to deal with it. It is however possible to plan how our health, welfare and financial affairs will be dealt with in advance, by making a Lasting Power of Attorney (LPA).

What is a Lasting Power of Attorney?

As a legal document, an LPA allows you (‘the donor’) to officially nominate someone to make decisions on your behalf when you are no longer in a position to do so. An LPA may be useful in a number of situations. For example, if physical or mental ailments have reduced your ability to look after your own affairs, or if you are abroad for long periods and you find it difficult to manage your property and finances in this country.

Most commonly an LPA will be used when someone has an injury, condition or disorder that causes them to lack mental capacity. So if there does come a time when you lose mental capacity, your affairs will then be managed by the person or people you have appointed to act as your attorney(s). This will give you and your loved ones the peace of mind that decisions are being made in your best interests and by those you trust.

Why Should I Make a Lasting Power of Attorney?

An LPA allows you to plan for the future, allowing you to legally record:-

  • What decisions you would like to be made on your behalf (either property and affairs or personal welfare, or both);
  • Who you would like to make these decisions (ie. who you would like to act as an attorney);
  • How you would like your attorney to make these decisions (for example, you can include specific instructions regarding medical treatment).

LPAs came into existence in October 2007 under the Mental Capacity Health Act, replacing Enduring Powers of Attorney (EPA). The current law is more comprehensive with many checks and safeguards in place, thereby ensuring your interests are protected at all times. If however you have made a valid EPA before October 2007, it is still effective and you do not need to replace it with an LPA if it still meets your needs.

What if I don’t make a Lasting Power of Attorney?

Your loved ones who are trying to care for you are likely to find it difficult or even impossible to deal with official bodies, banks and others on your behalf. Such organisations are increasingly demanding proof that you have given permission for your family to represent you, and may well refuse to accept their right to do so unless there is an LPA. Your family may then be driven to apply to the Court of Protection for an Order. This is part of the High Court in London. There is an initial fee of £400 to pay (at April 2015), with further fees and costs which are likely to run into thousands of pounds. It is not straightforward to make such an application, and can typically take 6 months to process. It is best avoided if possible.

Types of Lasting Power of Attorney

There are two types of Lasting Power of Attorney, each with different responsibilities:-

1.     Property and Affairs Lasting Power of Attorney 
This allows an attorney to make decisions regarding your property and your financial affairs. An attorney will be permitted to operate your bank accounts, pay your bills, collect your benefits and sell your property. Unless it states otherwise, a Property and Affairs LPA may be used as soon as it has been registered with the Office of the Public Guardian.

2.     Personal Welfare Lasting Power of Attorney 
This allows an attorney to make some or all decisions regarding your health and welfare. This may include matters such as medical treatment, residential care and accepting or refusing health care. If you wish, it can even extend to accepting or refusing life-sustaining treatment on your behalf. Additionally, your attorney can be given the power to decide upon your day-to-day care, such as your diet and where you should live. Unlike a Property and Affairs LPA, a Personal Welfare LPA may only come into force once it has been registered and the person making the LPA has lost mental capacity.

What happens after you have made your LPA?

For an LPA to become official, it must be registered with the Office of the Public Guardian. The necessary forms must be filled out, either by the donor or the attorney, and returned along with the registration fee. The Office of the Public Guardian will then carry out certain checks and, if there are no problems, the application should be processed within around 13 weeks.

To ensure your application is not hindered by any complications, it is best to speak to us before completing the forms. This is especially a good idea if there are complex financial matters to deal with, or if there are specific clauses you wish to include (such as restriction orders or demands regarding life-sustaining treatment). LPAs are powerful documents, so it is vital it is drafted correctly and according to your wishes.

What is the next step?

Please call 01242 235202 to speak to us, or fill in the form on the right so we can contact you to discuss this without commitment