Lasting Power of Attorney Guide

In this lasting power of attorney guide, we explain everything you will need to consider before making a lasting power of attorney (LPA), the information you will require, and the LPA procedure itself.

First, a quick mention of where you stand if you have an old enduring power of attorney. Provided that your enduring power of attorney was made before 1 October 2007, and it was prepared and completed properly, then it is still perfectly valid. However, you may wish to consider taking advice about replacing it with a lasting power of attorney, which is far more flexible and may be better suited to your current circumstances.

There are two types of lasting power of attorney and you can have one or both.

Lasting Power of Attorney Property and Financial Affairs

A property and financial affairs lasting power of attorney gives your attorney(s) the power to do things on your behalf such as:

• manage your bank and other accounts;
• pay your household and other bills;
• buy or sell your property;
• collect your pension and other benefits.

Lasting Power of Attorney Health and Welfare

A health and welfare decisions LPA allows you to appoint an attorney(s) to make decisions about things as varied as:

• where you live;
• who you have contact with;
• your daily routine, including such things as what you eat and wear;
• your medical care and treatment;
• whether you should have life-sustaining treatment, but only if you have given express permission.

What do you need to consider when making a lasting power of attorney?

In this lasting power of attorney guide, the first thing we recommend you consider before making an LPA is who you want to act as your attorney(s), and how you would like them to make decisions for you.

When choosing your attorney(s), you must consider the following:

• They must be over 18 years of age.
• They can be a family member (it is common to appoint partners and children), friends or your professional adviser – or a combination.
• They should be trustworthy and possess appropriate skills, so you are confident they will make good decisions on your behalf.
• If you make a lasting power of attorney for property and financial affairs, your attorney cannot be bankrupt or subject to a debt relief order.
• If you want to appoint more than one attorney, they should get on with each other or will be likely to do so.
• You can appoint just one attorney, but it is advisable to appoint more than one to lessen the chance of misuse of the power and ensure continuity in case one attorney cannot act.
• They must agree to be your attorney(s) and understand the role they will be taking on.
• They must follow special rules set out in the Mental Capacity Act 2005, make decisions in your best interests and follow the guidance contained in a Code of Practice. If we are instructed on your behalf, all this is set out in our information guide which we will provide to your chosen attorney(s).
• They must sign the lasting power of attorney document accepting their role and responsibilities.
• You will need to give us the full name, address, and date of birth of your attorney(s).

How do you want your attorney(s) to operate?

If you have more than one attorney, you can appoint them to act:

• jointly, ie always together; or
• jointly and severally, ie together and independently so that they can sometimes sign together and sometimes separately; or
• a combination of (i) and (ii), so some decisions can be made jointly and other decisions jointly and severally.

Joint appointments reduce the risk of misuse or abuse of the power of attorney, although it can delay decisions. But if they cannot all agree, it will prevent a decision from being made. Also, if one attorney dies, loses mental capacity or becomes bankrupt (if it is a lasting power of attorney property and financial affairs), a joint appointment means the LPA can no longer be used, unless the original remaining attorney(s) are reappointed, or replacement attorney(s) are appointed.

If you appoint your spouse or civil partner, dissolution of the marriage or civil partnership terminates their appointment, unless you have indicated otherwise.

Replacement attorneys

If you want only one person to act, you should consider appointing a replacement attorney in case your sole attorney cannot act. You can also appoint a replacement when you have more than one original attorney and will need to consider whether you want them to step in immediately any of the original attorneys cannot act, or when all original attorneys are unable to act.

Your choice of replacement attorney should be considered in the same way as your original attorney.

Restricting attorneys’ powers

As you make your way through this lasting power of attorney guide, you will notice that LPAs are extremely flexible. A great example is that they allow you to place conditions or restrictions on when and how your attorney(s) act for you, for example, limiting some decisions or setting out how they should make decisions.

Lasting Power of Attorney Health and Welfare – life-sustaining treatment decisions

If you wish to make a lasting power of attorney for health and welfare, you can give your attorney(s) authority to give or refuse consent to life-sustaining treatment. If you have already made an advance decision to refuse medical treatment (sometimes called a ‘Living Will’), you should bring this with you when you meet your solicitor as they will need to ensure that the outcome you want is achieved.

Lasting Power of Attorney Guide – do you want to give your attorneys guidance?

It is helpful for your attorney(s) to be given guidance about your wishes, feelings, values and beliefs, and who you would like to be consulted about significant decisions, so they have confidence they are making decisions you would want to be made if you were able. For example:

• In a lasting power of attorney for property and financial affairs, you might want to include details of people you wish to provide for or how your funds should be invested.
• In a lasting power of attorney for health and welfare, you might want to say where you would like to live if you can no longer safely remain in your own home, or the circumstances when your attorney(s) should refuse the continuation or giving of medical treatment.

Do you want your attorneys to be paid?

Generally, family and friends would not expect to be paid. However, you may wish to allow them to be paid for providing care or if the role would be significantly time-consuming because of the complexity of your financial affairs.

If you choose professional attorneys, they must be paid for their work. The LPA will set out the basis of charges.

Notifying people of the registration of the power

You can choose up to five people to be notified when the LPA is to be registered with the Office of the Public Guardian, who can raise concerns on your behalf. You must think carefully about the people you choose:

• The person should be someone with whom you are likely to have regular contact and who is interested in your best interests and well-being.
• You should tell them that you are naming them.
• You might also require your attorney(s) to consult or provide ongoing information, such as financial statements to your chosen person.
• You must provide your solicitor with their name(s) and address(es).

Lasting Power of Attorney fees

Don’t forget that besides professional fees for preparing the lasting power of attorney and providing the certificate, the Office of the Public Guardian currently charges £82 to register an LPA.

Who will be the certificate provider?

Your LPA must also be signed by an independent person confirming in their opinion at the time you sign the LPA:

• that you understand the purpose of the LPA and the scope of the authority given;
• that no fraud or undue pressure is being used to induce you to make the LPA; and
• that there is nothing else that would prevent your LPA from being created.

Lasting Power of Attorney certificate provider – who can act?

You must choose a person to act as your certificate provider, who must be:

• over 18 years of age;
• someone whom you have known for at least two years; or
• someone who, because of their professional skills and expertise, considers themselves competent to make the judgments necessary to give the certificate, such as a lawyer or doctor.

They cannot be:

• a member of your family;
• a family member of any of your attorneys;
• your business partner or paid employee;
• any attorney appointed by you under this document or another LPA or Enduring Power of Attorney (whether or not it has been revoked);
• the owner, manager or employee of a care home in which you are living, or their family member or partner; or
• a director or employee of a trust corporation appointed as your attorney.

If we agree to act as an attorney, we cannot act as certificate provider. If not appointed as attorneys, we can act as your certificate provider.

Lasting power of attorney checklist

Finally, in this lasting power of attorney guide, when you meet with your solicitor, remember to bring:

• The names, addresses and dates of births of your chosen attorney(s) and any replacement(s);
• The names and addresses of people you would like to be notified of the registration of the LPA;
• The names and addresses of any people you would like to provide for financially; and,
• A copy of your advance decision to refuse medical treatment (if you have one).