Lasting Powers of Attorney

What is a lasting power of attorney (LPA)?

With a growing elderly population, many people are concerned about the effects that conditions which may cause loss of capacity — such as Alzheimer’s, dementia and strokes — will have on their future, and what might happen when they are unable to make decisions for themselves.

One of the most effective solutions is to set up a lasting power of attorney, which empowers you to have a say in issues that might affect your life, even when you don’t have the capacity to do so.

Lasting powers of attorney (LPA) came into force on the 1st of October 2007 and replaced the enduring power of attorney (EPA) from that date, although EPAs already set up remain valid.

LPAs enable you (the donor) to give someone else (the attorney) the legal right to deal with your affairs should you not be able to.

You may wish to appoint a family member or friend as your attorney, giving them the responsibility for making decisions for you in the future. You can appoint one person to act on your behalf or name more than one person and specify different areas that each can make decisions about. You can also specify that decisions should be made jointly by both attorneys if you want to. If you don’t have a lasting power of attorney, you might want to take a look at our guidance.

Please contact us now if you would like to discuss powers of attorney with our legal experts.

There are 2 types of LPA:

Property & affairs LPA

You can set up a property and affairs LPA to come into force as soon as it is registered.

The property and affairs LPA gives your attorney the authority to deal with the following issues:

• dealing with bank and other financial accounts, including opening and closing
• buying and selling property
• claiming, receiving and using benefits on your behalf
• dealing with your taxes
• receiving income or inheritance for you
• making limited gifts on your behalf

In order to protect you, restrictions exist in many of these circumstances. For instance, gifts are limited to customary gifts that you may have made, such as birthday gifts to relatives, and must not be unreasonable in size given your financial circumstances.

An attorney is under obligation only to act in your best interests at all times, and various safeguards exist to ensure this.

Personal welfare LPA

If you set up a personal welfare LPA, it can only be used once it has been registered with the Office of the Public Guardian and also, importantly, after you have lost mental capacity.

This LPA offers broad scope for making decisions on a number of issues. These include:

• where you should live and who you should live with
• your day to day care, including diet and dress
• consenting to or refusing medical examination and treatment on your behalf
• who you may have contact with
• rights of access to your personal information
• assessments for and provisions of community care services
• whether you should take part in social activities, leisure activities, education or training
• your personal correspondence and papers
• complaints about your care or treatment

Other areas are included. However, at the time of making your personal welfare LPA, you can modify the scope of power. For example, you may not wish your attorney to have power to decide who you have contact with. You can state this in your LPA at the outset so that it is clear which decisions your attorney is allowed to make.

An attorney can only consent to, or refuse, life-sustaining or life-prolonging treatment on your behalf if you expressly authorise them to do so in your LPA. Your attorney is duty bound to act in your best interests at all times, and in cases of end-of-life treatment should consult with carers and family members who have an interest in your welfare. Of course, no attorney can be given the power to demand that you are given treatment if the medical staff in charge of your care don’t believe it to be necessary.

You need to choose your attorneys carefully. Read what can happen if an attorney does not follow the strict responsibilities placed upon them.

The personal welfare LPA gives you the ability to exercise a great degree of control over your future care in the event of loss of capacity. Making a personal welfare LPA needs careful consideration beforehand and you may want to consult with family members and medical practitioners before doing so.

What about power of attorney overseas?

This is a very complex area that warrants detailed cross-border legal advice. Each country/jurisdiction has its own rules and may not recognise a power of attorney made in the UK. Generally, a property and affairs LPA is the less complex instruction to implement, but it depends very much on the country to which someone has moved, or where they own property. Whatever the situation, it will usually require advice from a solicitor qualified in the law of that country’s jurisdiction.

If you’re habitually resident in the UK but you own property abroad that needs to be sold (perhaps to finance care home fees) after you’ve lost your mental capacity, then the foreign country may recognise a valid LPA made in England or Wales in order to facilitate the sale of that property. Documents may also require notarisation and legalisation to be recognised abroad. You may have made the equivalent of an LPA in that country, if available, in which case it may be simpler to follow the directions of that LPA. If you don’t have an LPA at all, it may be possible for your family to apply for a deputyship order to administer the overseas property.

If you’re planning to be habitually resident abroad, it’s best to make an LPA while you still live in the UK.

If you live abroad and you’ve been appointed as an attorney for someone in the UK, this is usually fairly straightforward, and you can exercise your powers remotely for the donor, from the country in which you live.

Does power of attorney affect a will?

No. An LPA ceases upon the donor’s death, when the instructions of a will take over. You can also read what happens if there is no LPA in place when someone loses their mental capacity.

What’s the difference between a lasting power of attorney and a living will?

A health and personal welfare LPA gives an attorney the right to make decisions on a range of personal issues, including your healthcare after you’ve lost mental capacity, whereas a living will (also called an advanced directive) is a statement detailing what medical treatment you want if you can no longer communicate your wishes, and in what circumstances this treatment should apply.

The personal welfare LPA is much more wide-ranging than the living will, since the living will is limited to medical treatment only.

A living will and LPA can exist side by side, as long as they don’t have contradictory instructions. A living will can also be made as part of an LPA, to give further details on the type of medical treatment you wish to have or to refuse in the event of you losing mental capacity. If you’ve previously made a living will, and then you subsequently make an LPA, the LPA will override the details of the living will.

Similarly, if you make a legally valid living will after making an LPA, then – providing you still have mental capacity and the LPA hasn’t yet been registered, or ‘activated’ – the living will takes priority over the LPA.

Does lasting power of attorney continue after death?

No, lasting power of attorney is no longer valid once the donor has died. At this point, the instructions placed within the donor’s will take effect.

Who to notify when registering lasting power of attorney?

Within the LPA form there is section titled ‘People to Notify’. This gives you the option to notify people that you have registered the document and plan to appoint one or more attorneys to take care of certain decisions after the point at which you no longer have sufficient mental capacity.

The people you notify may be family members of close friends. Some issues around LPAs involve the care of children. If this is the case, it is usual to inform the other parent of your child/children.

The reason for filling in the ‘People to Notify’ section is to reduce the chance that someone may object to your LPA and later challenge it.

Issues that may be raised during an objection include:

• that the LPA was drawn up while when the donor did not have mental capacity
• that the donor was forced to make the LPA against their will

These reasons may simply be a pretence covering the fact that the objector does not want the named attorney in charge of the donor’s finances or care.

Attorneys

The attorneys themselves are required to sign the LPA and, therefore, must also be informed by the donor, though it is not necessary to place their names on the People to Notify section of the LPA itself.

Multiple attorneys

The donor can choose to name more than one attorney. In the event that a decision must be made, the LPA can stipulate whether this should be done in one of two ways:

• jointly — with both attorneys required to agree on the outcome
• jointly and severally — when attorneys can make decisions both independently and together

The LPA can stipulate which decisions should be made in which manner.

Replacement attorneys

There is also provision within an LPA to name replacement attorneys. These will take on the responsibilities of an attorney in the event of:

• the death of the initially named attorney’s
• the loss of mental capacity of the initially named attorney
• the initially named attorney stating that they are no longer willing to carry out their duties at a named attorney

How to activate lasting power of attorney?

Lasting power of attorney must be registered before it can be used, and that can only be done by the person arranging an LPA (donor) at such time that they are deemed to have ‘mental capacity’, or by the attorney.

There is no formal procedure to ‘activate’ an LPA. Those named as ‘attorney’ can use the LPA at any stage after it has been registered, though most people will try to delay for as long as is practical in order to preserve the independence of the donor.

Who can witness lasting power of attorney

There are certain requirements and restrictions assigned to witnessing the donor’s signature on a lasting power of attorney. They are as follows:

• You must be aged over 18.
• You must not be one of the attorneys named in the LPA.

If you are witnessing the attorney’s signature, you must be over 18.

The certificate provider (the person responsible for ensuring that the donor is mentally capable
of making an LPA) is also allowed to witness both the donor’s signature and the attorney’s signature. In instances of more than one attorney, an attorney can witness another attorney’s signature (though not the donor’s signature).

When does lasting power of attorney take effect?

An LPA takes effect as soon as it is registered. It does not depend upon the donor losing their mental capacity.