What are Lasting Powers of Attorney?
Lasting Powers of Attorney (LPAs) are documents that allow you to appoint a person or persons you trust to look after your affairs and make decisions on your behalf. This could be a family member, friend, business partner or a professional. There are two separate types of LPAs:
- Property and Financial Affairs LPA – Allows the attorney to manage your finances
These can be used where you have lost mental capacity and are no longer able to, for example, manage your bank account and pay your bills
These can also be useful in situations where you still have capacity, but wish someone else to take over the management of your affairs, for example because you are going abroad for a period of time, or are recovering from a physical illness and cannot cope with managing your finances.
- Health & Welfare LPA – Allows the attorney to make decisions about how you live and what treatment you will receive
These can only be used in situations where you have lost mental capacity to make decisions about your care yourself, for example through dementia, a stroke, or a traumatic brain injury
These could allow your attorneys to decide where you live, what kind of care you receive, and possibly to refuse certain treatments for you if you have agreed to this in the LPA.
Why should I think about making one?
Preparing for making an LPA encourages you to really think about what decisions you would like to be made on your behalf in certain situations, and to engage the people around you early on in those perhaps difficult but necessary discussions.
Actually putting the LPA into place empowers you to put those thoughts into action by:
- Specifying exactly who you want to be making those decisions; and
- Setting out in detail, if you choose, your preferences and instructions for your attorneys to follow
Should you then either lose capacity or simply wish another person to manage your finances for a period of time, they will be able to step in and do so immediately.
What will happen if I don’t have an LPA in place and someone else needs to make decisions for me?
Financial decisions: An application will need to be made to the Court of Protection to appoint a Deputy for you. This will be more costly than setting up an LPA and can be a lengthy and potentially expensive process, meaning your family may be left in a position of being unable to access and manage your funds in the meantime.
Health and welfare decisions: These decisions will often be made in accordance with the “best interests” principle – i.e. what those around you consider to be in your best interests at the time. Difficult decisions, for example refusing life-sustaining treatment, and decisions where the people around you cannot agree on what to do may also have to be taken to the Court of Protection.
LPAs are not for everyone and you may decide that you are happy with those around you taking these decisions. However they will not necessarily have the authority or the guidance that an LPA provides them with, and the people who end up making decisions for you may not be who you would have chosen to do so.
Why would I need a solicitor to help me with my LPA?
Clearly an LPA is a powerful legal document. Prepared correctly they can be immensely helpful tools, but prepared poorly they could be at best ineffective and at worst leave you open to being taken advantage of.
Whilst you can set up an LPA online by yourself, instructing a solicitor to guide you through the process will ensure that:
- You only enter into an LPA understanding what rights and powers you are granting
- You think properly about appointing an appropriate attorney
- If you choose, we can build safeguards into your LPA that will not necessarily otherwise exist
- We can help you to think of possible scenarios and draft appropriate preferences and instructions accordingly
- Your wishes and interests are paramount, not those of the attorney
In 2017, then President of the Law Society, Joe Egan, said:
“Because of the significant influence a power of attorney places over your affairs, it is important to get legal advice from a solicitor on whether it is right for your circumstances.
While the risk of exploitation in these difficult circumstances can never be entirely eliminated, a solicitor can help prevent abuse, reduce the risk of trouble, and ensure those who need them can get these important documents in place to ensure someone is there to look after their affairs when they are no longer able to look after themselves.”
Confused or need help?
Our specialist Long Term & Elderly Care Team at Gregg Latchams can advise you to enable you to decide whether Lasting Powers of Attorney are right for you. We are happy to help with both drafting them and applications to the Court of Protection should a situation arise that you are not prepared for.