A Lasting Power of Attorney (‘LPA’) gives you (the ‘Donor’) the opportunity to choose who would manage your affairs, such as health, welfare, property and finances, if you are unable to. For example, after a major accident or illness that resulted in you not having the mental capacity to do so (the ability to make your own decisions).
Using an LPA, which is a legally binding document, you can appoint who you trust to be Attorneys and make decisions on your behalf if you lose the capacity to do so.
Did you know there are two types of LPA?
There are two types of LPA available:
- Health and Welfare
- Property and Financial Affairs
You can prepare a LPA covering one or both aspects, but this is down to you and your needs.
Under a Health and Welfare LPA, Attorneys can make decisions about your daily routine (dressing, washing, eating, general hygiene), medical care and attention, life-sustaining treatment and whether you should be moved into a care home.
Under a Property and Financial Affairs LPA, Attorneys have the legal rights to manage your bank or building society accounts, collect any benefits or pension and pay any bills. Under this LPA they can also decide whether they need to sell your home or not.
If an Attorney decides to sell the Donor’s home, where the Donor will live needs to be discussed with the health and welfare Attorney.
However, at all times, the Attorneys need to act in your best interests as the Donor and, if they are acting for you while you still retain the mental capacity to manage your own affairs, they should seek your consent for all actions. In the ideal situation, there should not be any conflict as the Attorneys should technically only be doing what you, yourself, would be doing.
Do Enduring Powers of Attorney still exist?
Before LPAs came into existence, its predecessor was the Enduring Power of Attorney (EPA). This was eventually considered too prone to abuse as it did not need to be registered anywhere, unless you, the, Donor, lost capacity – or the Attorney thought you lost capacity. As a result, they were prone to abuse and the system was overhauled and EPAs were replaced with LPAs in 2007.
However, if an EPA was signed before 1st October 2007, it will still be valid and can be registered if the situation arises.
Can an Attorney access my money?
Yes, under the Property and Financial LPA, an Attorney can withdraw money on your behalf and for your benefit. However, the Attorney must keep theirs and your finances separate at all times.
Before an Attorney can start to manage your bank account they need to prove that they are legally entitled to. The bank must be shown an original, or a certified copy of the LPA.
Under an LPA, Attorneys can spend money or gifts to friends and family on your behalf for birthdays, anniversaries etc. Attorneys can also donate to a charity that a Donor wouldn’t object to e.g. a charity the Donor has previously donated to. At all times, the crucial point being that they act in your best interests and only do what you would reasonably be expected to do.
There are situations where the Attorney must apply to the Court of Protection for permission to carry out certain acts. Mainly, these revolve around making gifts on your behalf, especially if they are out of character for you.
Can an LPA be revoked?
Yes, an LPA can be revoked at any time, so long as you still retain the mental capacity to manage your affairs. If you want to revoke an LPA, you will need to fill out a Deed of Revocation form.
The deed must be signed by the Donor and the Attorney’s authority doesn’t stop until they have been informed of the revocation, meaning that a copy of the deed must be sent to those acting as an Attorney.
To confirm that the power has been void, the Donor must demand that the Attorney gives back their power to them.
All LPA’s are registered with the Office of the Public Guardian. If an LPA has been registered, the Donor must ask them to remove the LPA from the register by sending them a copy of the deed.
What happens if an Attorney dies?
If an Attorney falls seriously ill (meaning they lack mental capacity) or dies, you need to investigate the terms of your current LPA. If you have no replacement Attorneys lined up, you will need to make a new LPA.
There is no limit to the number of Attorney’s you can appoint. If you have appointed more than one and have instructed them to act ‘jointly and severally’ (so that they can make decisions without the agreement of the other Attorneys), the remaining Attorneys can continue to make decisions, even if one of them passes away.
If you have appointed Attorneys to act ‘jointly’ (so that they must all agree on decisions) or ‘jointly for some decisions, jointly and severally for others’ (some decisions must be made jointly but not for others) you will need to look into replacement Attorneys or drafting a whole new LPA.
If you would like to talk to me about LPAs, a conversation is free and no obligation: