We have talked to John Cooke, associate solicitor working in our Private client team, in order to understand what is a lasting power of attorney and how can it help you. We hope you find it as interesting as we do!
What is a Lasting power of attorney?
A Lasting Power of Attorney is a legal document in which you nominate people to be authorised to make decisions on your behalf.
Who is the Donor?
The Donor is the person making the Lasting Power of Attorney.
What is an Attorney?
An Attorney is the person you appoint to manage your affairs on your behalf.
How is a Lasting Power of Attorney different from an Ordinary Power of Attorney?
A Lasting Power of Attorney can be used even if the Donor loses the capacity to make decisions, whereas an Ordinary Power of Attorney will cease to have effect if the Donor loses capacity.
Are there different types of Lasting Powers of Attorney?
Yes, there are two types of Lasting Power of Attorney. You can have a Lasting Power of Attorney in relation to your property and financial affairs (e.g. Bank accounts, stocks and shares, house, benefits etc.) and in relation to your health and welfare (e.g. making medical/welfare decisions).
Can I have both a Property and Affairs LPA and Health and Welfare LPA and would my Attorneys have to be the same?
You can have one or both types of LPA. They are independent of each other and so you could appoint different Attorneys if you wished.
Who can be an Attorney?
Anyone over the age of 18 can be an Attorney. It is usual for Donors to appoint close family members as their Attorneys. However, Donors also frequently choose to appoint others such as friends or their solicitors either jointly with family members or on their own, or as replacements.
When can an Attorney act?
An Attorney only has authority to act when the Lasting Power of Attorney is registered at the Office of the Public Guardian. An Attorney under a Health and Welfare power can only make decisions when the Donor is unable to do so because they are no longer capable
How must my Attorneys act for me?
- Must assume that you can make your own decisions unless they have established that you can’t.
- They must help you to make as many decisions for yourself as they can.
- They cannot treat you as unable to make the decision in question unless all practicable steps to help you to do so have been made without success.
- They must not treat you as unable to make a decision simply because you make an unwise decision.
- They must act in your best interests at all times when you are unable to make decisions for yourself.
- Before your Attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.
How many Attorneys can I have?
There is no limit on the number of Attorneys you can have. The number of Attorneys you would be advised to have would depend on your individual circumstances. For some people, having one Attorney may be sufficient, but for others it may be the case that three or four Attorneys may be more suitable. It is rare for people to need more than four Attorneys and the most usual number is two.
Can I restrict my Attorneys’ powers?
Yes. It is possible within the Lasting Power of Attorney document to place restrictions on how your Attorneys act for you. For example, you may wish not to give your Attorney authority over some of your assets. However, this is uncommon because, as your Attorney should be someone your trust wholeheartedly, to impose restrictions in the majority of cases would seem unnecessary.
Can I specify guidance for how I want my Attorneys to act for me?
Yes. The Lasting Power of Attorney allows you to set out guidance to your Attorneys. This is optional and is not binding but, if there are potentially difficult decisions, it may be helpful to your Attorneys to know your preferences in advance.
Can my Attorneys make gifts on my behalf?
In general, Attorneys are not permitted to make gifts without the approval of the Court of Protection. This is the case even if the Attorneys wish to benefit the Donor by making the gift (e.g. reducing the Donor’s estate for inheritance tax purposes). There is limited authority for Attorneys to make gifts to charities and gifts to family members of a seasonal nature, or made on the occasion of a birth or marriage/civil partnership, or on the anniversary of a birth or marriage/civil partnership. If an Attorney is considering making a gift, they should first seek appropriate legal advice.
Who can be a witness to my signature?
Anyone over 18 who is not a specified Attorney or replacement Attorney. They must also not be an employee of any Attorney or replacement Attorney.
What happens if I have no Lasting Power of Attorney and I lose capacity to manage my affairs?
The only way a person can be legally appointed to manage your affairs would be through a Deputyship Order at the Court of Protection.
In QualitySolicitors Amphlett Lissimore we care about your needs and we think the first step is giving you all the information before taking further actions, so please, fell free to comment or send us any doubt you might have via email, or call our Private Client team today, 020 8771 5254, to get more information about the Lasting power of attorney .