Lasting Powers of Attorney

By Zoe Sivelle

Partner

19 February 2024

Article Insights

The ageing process and its associated problems can be difficult for all involved, including friends and family.  Dealing with everyday affairs, both financial and non-financial can be a burden, and is especially difficult if a family member does not have the authority to deal with such matters on your behalf.  Selling a house or accessing funds to pay care home fees on a person’s behalf, for example, can be troublesome if that person cannot give consent.

There are steps that can be taken to help make this stage of life as easy as possible by considering Lasting Powers of Attorney. 

Lasting Powers of Attorney (LPAs) were introduced on 1 October 2007 and replace the previous Enduring Powers of Attorney, which can no longer be made (although any Enduring Powers of Attorney made before 1 October 2007 will still be valid).

As with Enduring Powers of Attorney, the idea of LPAs is for an individual (also called the Donor) to appoint people to deal with his or her affairs once he or she has lost mental capacity.  Without some kind of formal authority, relatives may have difficulty in accessing bank accounts and other details required to meet everyday needs.

There are two types of LPAs: one for Property and Financial Affairs, concerning the Donor’s property and finances; and one for Health and Welfare, concerning health and welfare decisions about the Donor.  This also includes, if the Donor so wishes, authority for the attorneys to give or refuse consent to life sustaining treatment. 

The Donor can choose to have as many attorneys as he or she likes, although more than three attorneys may cause practical problems.  The Donor can choose to have the same or different attorneys for both LPAs.  There is no need for the Donor to make both LPAs, as they work independently of each other, although there is some overlap, for example making the decision to move the Donor to a residential home may involve selling his or her house to meet the care home fees.

The attorneys should be trustworthy and must act at all times in the best interests of the Donor.  No specific skills are required, although the attorneys should be competent to act within the scope of their relevant LPA.  Sole attorneys can be appointed although this provides greater opportunity for abuse of the power and so two attorneys are usually advised.  Attorneys can act together for everything, or separately for everything, or together for some things and separately for some things.  This will be the choice of the Donor.

The Donor can indicate in the LPAs any preferences  they have as to the management of their finances, or the management or their care, or they can leave instructions to the attorneys about these elements, though instructions need to be carefully thought out as they are legally binding on the attorneys.

Both the Property and Financial affairs and the Health and Welfare LPAs must also be signed by a “Certificate Provider”, who is a usually professional (such as a solicitor or doctor) or a longstanding friend of the Donor.  The purpose is to confirm that the Donor understands the nature of the LPAs and the consequences of signing them.

The LPA must be registered at the Office of the Public Guardian before it can be used by the attorneys.  This is for the protection of the Donor as the Office of the Public Guardian maintains a register of all registered LPAs, which is open to the public for inspection.  The Donor can choose to notify up to five people (for example, friends and neighbours) about the registration of the LPA.  These individuals can then object to the registration if they have concerns about the capacity of the Donor or the suitability of the attorneys, for example.

Once registered, the LPA can be used by the attorneys to take care of the Donor’s affairs when necessary, giving peace of mind to all involved.

If you would like to make an enquiry, or discuss the details of this article, please contact Zoe Sivelle, or any member of the Wills, IHT, Trusts & Probate team.

Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.