Lasting Powers of Attorney

The majority of people have heard of Powers of Attorney, for example, where someone appoints an ‘Attorney’ to deal with the sale of a property while abroad on business. But Lasting Powers of Attorney (LPA) are less well-known yet very important as they enable individuals to pass the legal authority for managing their finances onto someone else on their behalf, maybe because of a physical disability or debilitating illness.  Although LPAs are usually associated with the older generation, they can be just as useful for individuals who are not advanced in years. In fact, anyone aged 18 or over can make an LPA but crucially, the donor must be mentally capable at the time of making one.   An LPA allows an individual (the donor) to appoint someone he or she trusts such as a relative, friend or professional to act on their behalf (the Attorney) - even after they have lost their mental capacity. This person does not need to be a legal professional. There are two types of LPA:   •    a Property and Affairs LPA allows an individual to choose someone to act on their behalf in relation to spending their money and managing their property affairs.   •    a Personal Welfare LPA allows an individual to appoint someone to make decisions relating to their personal healthcare and welfare, including decisions on where they live, and consent to medical treatment. An LPA has to be registered with the Office of the Public Guardian, and only when this is done can the attorney act on the donee’s behalf.  Once the LPA is registered it continues indefinitely but it can be cancelled so long as the donor has the mental capacity to do so. On death, the LPA automatically ceases to be effective. The Attorneys must then cease acting in respect of the donor’s affairs as the personal representatives will assume the legal responsibility to administer the estate of the deceased as it goes to Estate Administration, where probate may also be required. Once an LPA is registered, an Attorney must always: •    act in the best interests of the person making the LPA •    must consider the donor’s past and present wishes •    act in good faith •    avoid taking advantage of their position •    must apply a reasonable standard of care The Attorney is answerable to the Court of Protection for their actions so they should keep a record of all decisions and actions they take in this capacity to avoid any potential problems. An Attorney can retire from his role by submitting the relevant form to the Court of Protection. If an Attorney dies before the Donee and a replacement Attorney is named on the form then that replacement will take over the responsibilities of Attorney. If no other person is named on the form then an application will need to be made to the court for someone to take over the affairs of the donee. If you are considering making an LPA, it is important that in choosing an Attorney you consider how well you know the person, whether you can trust them implicitly with your money and your welfare and, of course, whether they are willing to take on the responsibility.  You may consider appointing more than one person – this can minimise the risk of a single Attorney abusing his or her responsibility. Until a couple of years ago, these powers (then called Enduring Powers of Attorney) were simple and straightforward documents that did not require a lawyer to complete.  However, the documents have been made more complicated by the Government to reduce the risk of exploitation of vulnerable people through fraud or undue influence. Ideally, you should always seek professional legal advice if you wish to make a Lasting Power of Attorney so that you can properly protect yourself for the future. For Free Legal Advice on Probate Services , Intestacy and any other issues mentioned in this article then check online to get the information and advice you need.

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