Lasting Powers of Attorney are legal documents, and are incredibly powerful so it is really important that if you want to appoint people to look after your affairs or your health you should choose people you trust implicitly. There are two types of Lasting Power of Attorney (LPAs). One enables your attorneys (the person(s) you appoint to look after your property and finance and the other one allows your attorneys to make decisions about your health and social care.
The Property and Finance Lasting Power of Attorney
This allows you to choose a person(s) you trust to make decisions about how to spend your money and to look after your property and financial affairs generally. They could buy or sell property on your behalf and run your bank accounts and your investments. It will also allow your attorneys to pay your bills, sort out queries with third parties e.g. DWP, insurers, utility providers etc. However, you can control what your attorney can and cannot do, which is legally binding upon them should you lose capacity. For example, if you didn’t want them to sell your property unless it was unsafe to live there on medical grounds you could make it a condition of the LPA that the property shouldn't be sold unless your GP thinks it's medically unsafe, then your attorneys couldn’t sell your property unless it was unsafe for you to live there on medical grounds.
The Health and Welfare Lasting Power of Attorney
The Health and Welfare LPA allows you to appoint a person to look after your personal health and social care but only if you are unable to make the decision that needs to be made because you have lost mental capacity. It would allow them to decide on where you live, the type of healthcare and medical treatment that you would receive, including life sustaining treatment. It would also cover day to day matters such as your diet and daily routine.
Why should you have an LPA?
Many people think that LPAs are for the elderly or for people who have been diagnosed with dementia. However, anyone can fall ill at any time and sadly, Covid has shown us how vulnerable we all are. Putting an LPA in place can remove stress and anxiety for you and your family, friends and carers should decisions have to be made on your behalf, because the only other alternative may be to apply to the Court of Protection for an order to act on your behalf which is very costly and a lengthy process. It can also cause disagreements between family members, especially if they have different ideas about what is best for you, particularly if you never had the difficult conversations with them before you lost capacity.
Who can you appoint as your attorney?
An LPA is an extremely powerful document as you are handing over key decisions about your life, your welfare and your assets to someone else. You should choose people who are responsible, trustworthy and have the appropriate skills to make the decisions you set out in the LPAs. You can appoint anybody who is at least 18 years of age and not bankrupt (for the property and financial affairs LPA). An attorney can be a family member, another trusted person or a professional adviser such as a solicitor who specialises in LPAs. You can also appoint more than one person to act as attorney.
When can your attorney(s) act?
Your attorneys cannot act until your LPAs have been registered with the Office of Public Guardian. This can take between six to nine weeks. However, once registered, your LPA for Property and Finance could be used immediately (if you tick the box allowing for this) otherwise it can only be used if you lose capacity. Most people will allow their attorneys to act immediately which is really useful, for example, if you get stuck abroad but are in the middle of buying a house and cannot sign legal documents, by allowing your attorneys to act, they can sign documents on your behalf and the sale can proceed. Your LPA for health and welfare can only be used IF you do not have capacity at a particular time to make a particular decision (i.e. they are time and decision specific).
How do your attorney(s) make decisions and do you have any control over their decisions if you lose capacity?
If you’ve chosen two or more attorneys, you must state how they should make decisions on your behalf. It could be:
Jointly and severally (attorneys act either together or individually, but they decide which decisions they should make together, but they must always act in your best interests).
Jointly (this is where they must make all decisions together)
Jointly for some decisions and jointly and severally for others (this is where you would stipulate which decisions must be made together, and for those decisions where you haven’t made any stipulation they can either act together or independently)
The LPA has a section called 'Conditions' and 'Preferences'. A condition is legally binding on your attorney whereas a preference is guidance.
You should also be aware that your attorneys cannot change your will.
Can you change your mind once the LPA is in place?
You can cancel your LPA at any time provided you have the mental capacity to do so, even if it has been registered with the OPG. If it is not cancelled, the LPA will last until you die. If you decide to change your attorneys, you will need to cancel your current LPA and make a new document. The new document will need to be registered before it can be used.