Lasting powers of attorney | Wills, trusts and probate solicitors

When somebody’s mental capacity deteriorates it can be a very difficult time for all concerned. There are ways that you can plan for such an event which may help to ease the burden on your loved ones.

| What is a lasting power of attorney (LPA)?

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An LPA is a legal document that allows you to name one or more people to make decisions for you if you find yourself in a position where you are unable to make decisions for yourself. The term used to describe somebody’s ability to make their own decisions is mental capacity.

If you have made an LPA and were later involved in an accident or suffered from an illness that resulted in you losing your mental capacity, the person or people who you appointed in your LPA (your attorneys) would be able to look after your affairs for you. An LPA cannot be used until it is registered with the Office of the Public Guardian (OPG).

There are two different types of LPA:

Property and financial affairs LPA

This type of LPA can give your attorneys the power to make decisions relating to your finances and property. This can include running your bank accounts, paying your bills and selling your house. This type of LPA can be used while you still have mental capacity if you want it to be. You are able to restrict the powers that you give to your attorneys if you wish.

Health and welfare LPA

This type of LPA can give your attorneys the power to make decisions relating to issues such as what medical treatment you would receive, where you would live and who can visit you. This type of LPA can only be used once you have lost your mental capacity.

Visit our wills glossary for more definitions of legal terminology.

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| Why should I make an LPA?

If you lose your mental capacity and you do not have an LPA it is likely that somebody will have to make an application for a court order to allow them to deal with your affairs. The person appointed would be known as your Deputy. Your deputy may not necessarily be someone you would have chosen.

Obtaining the court order can be very slow, stressful and expensive. Once the order is made, the court will then have a duty to supervise your deputy. It is likely that your deputy will have to:

  • Submit annual accounts to court
  • Pay annual court fees
  • Pay annual insurance fees
  • Meet with court-appointed inspectors

By making an LPA you get to decide who will deal with your affairs if you lose your mental capacity. The LPA will make the process much easier for those involved as they will not have to obtain a court order. An LPA is much cheaper than obtaining a court order, no annual fees are payable and there will be no requirement for your attorneys to submit annual accounts.

In many ways an LPA is like taking out insurance; you hope that you will never need it, but if you do, it is usually money well spent.

| Who should I choose as my attorneys?

An LPA is a powerful document so it is vital that you choose your attorneys wisely. Most importantly, your attorneys should be people who you trust. An attorney for Property and Financial Affairs will have access to your finances so it is essential that you do not appoint somebody who may abuse the powers they are given.

It is possible to appoint more than just one attorney. When appointing multiple attorneys, you can decide whether they must act jointly or jointly and severally.

  • By appointing attorneys to act jointly, they must always make decisions together. This can be a useful safeguard as the attorneys should be able to keep an eye on what the other is doing. However, it can make the day to day running of your affairs more onerous.

Having attorneys appointed jointly can also cause problems if one of the attorneys is unable to act for some reason. It can also cause problems if the attorneys are unable to agree.

  • By appointing attorneys to act jointly and severally, any one of them can act by themselves. This can make life much simpler for the attorneys but you must be aware that either attorney can act without the other’s knowledge.

| What is an enduring power of attorney? (EPA)?

A general POA (sometimes called ordinary power of attorney) is a document which gives somebody the authority to deal with your finances. Unlike an LPA and EPA, if the person who makes the general POA loses their mental capacity, the document can no longer be used. It is therefore not a way of planning for such an eventuality. A general POA does not have to be registered with the OPG.

General POAs are sometimes used if a person is going to be out of the country for some time or if they are making an LPA but want something that can be used immediately while the LPA is being registered.

| What is a living will?

This is a document which allows you to refuse medical treatment in the future if you lose mental capacity to make such a decision yourself.

A living will is different from a Health and Welfare LPA. The main purpose of the LPA is to appoint somebody to make decisions for you whereas a living will is designed so that you can make your own decisions in advance. It is possible to have both a living will and a Health and Welfare LPA.

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Expert Advice

Andrew Milburn


T. 0113 297 3181

Andrew is Head of Wills, Probate and Trusts and has experience in a wide range of areas of private client work. Andrew is a Dementia Friend, a member of the Society of Trust and Estate Practitioners (STEP) as well as Solicitors for the Elderly.

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