What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that allows another person (or people – called your attorneys) to make decisions on your behalf.
Types of Lasting Power of Attorney
There are two types of Lasting Power of Attorney:
1. Property and Financial Matters
This enables your attorney to pay bills, open and close bank accounts, sell your property and make investments on your behalf. You decide whether you want your attorneys to be able to act whilst you still have the mental capacity to manage your own affairs (but perhaps don’t want to) or if they only step in when you lose mental capacity in this regard.
2. Health and Care
A Health and Care Lasting Power of Attorney ONLY comes into effect if you no longer have the mental capacity to make decisions about your health, care and/or medical treatment. Your attorney will be able to make decisions about the care you receive, where you live, your day-to-day welfare, and, should you choose, whether you should receive life-sustaining treatment.
Appointing Lasting power of attorney:
Appoint the same or different attorneys for each document, but a power of attorney is only valid when it has been registered with the Office of the Public Guardian.
- Choose who you want to act as an attorney.
- Choose more than one attorney and decide how you would like them to work together.
- Choose whether you want to appoint replacement attorneys if your chosen attorney is unable to act for you.
- Limit the powers in the document, if there is something you don’t want the attorneys to do
- Give guidance to your attorney about how you would like your affairs to be managed.
Who can be an attorney?
Your chosen attorney should be a responsible person that you know and trust. However, if you do not have anyone suitable, we act as professional attorneys for many clients. If you appoint more than one attorney, it is vitally important that they get on and agree to work together. We work with many attorneys in dispute with each other, which could have been prevented if more thought had been given when a power of attorney was prepared.
An attorney must be 18 or over, not have been declared bankrupt and have the mental capacity to fulfil their legal duties.
Your attorney must:
Follow the Mental Capacity Act 2005 and supporting guidance and act in your best interests at all times
- Consider your past and present wishes, including the instructions and guidance in the Lasting Power of Attorney document itself.
- Not take advantage of you to benefit themselves
- Keep all of your money separate from your own.
What happens if I don’t have Lasting Powers of Attorney and then lose the mental capacity to do one?
From a financial perspective, your assets may be frozen as without a Lasting Power of Attorney, no one will have the legal authority to manage your affair. In these circumstances, an application will need to be made to the Court of Protection.
With regards to your health and welfare, without a Lasting Power of Attorney, you may be surprised to know that a range of professionals will step in to take decisions on your behalf, rather than your family or friends. This can include decisions about medical treatment, where you live and the type of care you receive and can lead to disputes between families and health and social care professionals. In these circumstances, it may be appropriate to refer the matter to the Court of Protection, and our specialist solicitors can provide advice and representation. Contact our team on 01926 354704 for more details