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Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a document by which an individual (the donor) appoints a trusted attorney or attorneys to deal with his affairs. Under an LPA an attorney can continue to act even after the donor becomes mentally incapable of making decisions for himself or of managing his day to day affairs.

The LPA was introduced by the Mental Capacity Act 2005 and has replaced the old Enduring Power of Attorney. Although an existing enduring Power of Attorney remains valid, any Power of Attorney made after the 1st October 2007 and which is intended to remain effective after the donor becomes mentally incapable, must be a Lasting power of Attorney.

The Mental Capacity Act 2005 aims to ensure that an attorney always acts in the best interests of the donor and includes added measures to protect against abuse. These measures include a capacity test which ensures that the donor fully understands the document and is not under any pressure to make it. They also include a requirement that the LPA is registered with the Office of the Public Guardian and that nominated persons are notified before an attorney can begin to act or make decisions for the donor under the LPA.

For people who wish to make provision for the future there are two separate types of LPA. The first deals with the donor’s property and affairs and the second with his personal welfare:

  • A Property and Affairs LPA can cover all aspects of the donor’s financial affairs, from his day to day expenses to the sale of his house and the management of his income. The donor can impose whatever restrictions he considers appropriate. For example, these restrictions might include a statement that the attorney cannot act until the donor begins to become mentally incapable or can prevent the attorney from taking specified actions. Subject to any restrictions contained in it, once registered with the Office of the Public Guardian, this type of Lasting Power of Attorney can be used by the attorney(s) straight away.
  • A Personal Welfare LPA covers the donor’s personal healthcare and welfare. This includes, for example, where and with whom the donor should live, decisions relating to his day to day and medical treatment and rights of access to personal information about him. The donor may specifically include the power to make decisions to give or refuse consent to life sustaining treatment. As with the Property and Affairs LPA, the donor can impose any restrictions he wishes This type of LPA can only be used after the donor has lost his mental capacity and the LPA has been registered with the Office of the Public Guardian.

Anybody can be appointed as an attorney as long as he or she is over the age of 18 and is not bankrupt. However, given that the person appointed will have control over all the donor’s assets and finances, the attorney must be 100% trustworthy.

The new Lasting Powers of Attorney are more lengthy and complex than the previous Enduring Power of Attorney and must be registered before use. For these reasons, it is strongly advised that, if you wish to make a Lasting Power of Attorney, you should seek the help of a solicitor.

Why make a Lasting Power of Attorney?

Many people ask why they should make a Lasting Power of Attorney when they are quite capable of managing their affairs and making their own decisions. At The Specter Partnership, we understand that our clients worry about their future and that might happen if they become mentally incapable. By making a Lasting Power of Attorney NOW whilst you are able to make the necessary decisions, you can protect your family and dependants from the immense trauma, difficulty and hardship which might arise if they are left without access to the finances needed for your support in the future.

In many cases, we do not know when we will need a Lasting Power of Attorney. Mental incapacity can come about unexpectedly due to a sudden accident or illness, not just from long standing illness or old age.

If you lose your mental capacity without making an LPA, then it is likely that your family will have to apply to the Court of Protection for a deputy to be appointed to manage your affairs. Such an application is time consuming and costly, involving substantial application fees and charges that will continue from year to year.
By making a Lasting Power of Attorney NOW you can avoid all of this and have the peace of mind that someone you trust will be able to look after your finances and welfare when you are no longer able to do so.

How Can The Specter Partnership Help?

We are happy to assist with the drafting of a Lasting Power of Attorney on your behalf and provide advice in relation to the same.

Please contact us on 0800 019 3460 to discuss your requirements.