A guide to making a Lasting Power of Attorney

Making a Lasting Power of Attorney can give peace of mind to you as a carer and the person that you look after.

Jessica Shale from Taylor Rose MW solicitors gives a  guide to a Lasting Power of Attorney.

What is a Lasting Power of Attorney?

Gov.uk’s formal definition of a Lasting Power of Attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.

Why have a Lasting Power of Attorney?

The idea of a Lasting Power of Attorney is to provide reassurance to you, that if you have an accident or illness and become unable to make your own decisions, those that you trust will be able to take care of your affairs on your behalf.

What happens if you don’t have a Lasting Power of Attorney?

If you lose mental capacity or become unable to manage your financial and health affairs, without a Lasting Power of Attorney, you may have no control over who will make decisions for you.  Also, relatives may have to apply for a Deputyship Order (discussed further below).  Easy tasks such as paying bills or dealing with utility companies could become incredibly difficult and time consuming for those that look after you.

Does a Lasting Power of Attorney cover death?

No.  A Lasting Power of Attorney allows you to appoint people to manage your affairs during your LIFETIME only.  Your attorneys do not have control over what happens with your estate on your death.  Your Lasting Powers of Attorney become void upon your death.  Your Will sets out who should take care of administering your estate on your passing.  It is therefore important to have both Lasting powers of Attorney and a Will in place.

What can a Lasting Power of Attorney cover?

There are two types of Lasting Power of Attorney available to you.  One covers Property and Financial Affairs and the other covers Health and Welfare.  Most clients decide to have both put in place however, this is not obligatory and you can choose one of the two should you so wish.

Property and Financial Affairs

This Lasting Power of Attorney allows your appointed attorneys to act on your behalf regarding financial transactions and transactions relating to your property.  To give you an example, your attorneys are able to but not limited to:

1. Pay your bills
2. Contact utility companies on your behalf
3. Withdraw money
4. Deal directly with your bank/building society
5. Write cheques
6. Sell your property

Health and Welfare

This Lasting Power of Attorney allows your appointed attorneys to act on your behalf regarding specific decisions relating to your health and your welfare.  To give you an example, your attorneys are able to but not limited to:

1. Make arrangements and decisions regarding your care – this could include:
2. Deciding on permanent residential care
3. Deciding on home carers
4. Make decisions regarding life sustaining treatment

When can they be used

Lasting Powers of Attorney have to be registered by The Office of the Public Guardian before they are able to be used.

You are able to choose whether your attorneys are able to act on your behalf for your property and finances either:

1. As soon as the document is registered but with your permission
2. Only if you have lost mental capacity

Most choose the first option as it means that if you are unwell/in hospital/stuck abroad (but still maintain capacity), your attorneys can act on your behalf.  The second option is very much limited to confirmation by a GP that you no longer have capacity to make any decisions regarding your property and financial affairs.

Health and Welfare works slightly differently.  Your attorneys are able to act on your behalf as and when you are unable to make a decision on a specific aspect of your health, or welfare.

How do I know my attorney will act in my best interests?

When appointing attorneys, you should always ensure that you name people who you trust to have your best interests at heart.  You should take time to discuss with them your intentions for the documents and share your thoughts on how you would wish for your affairs to be managed should they need to step in.  Please do note however, that any conversations would not be legally binding.

You could also write a letter to your attorneys detailing any wishes you may have.  Again, this is only guidance and would not be legally binding.

You are also able to include guidance and restrictions to your attorneys within each type of Lasting Power of Attorney, should you have particular wishes relating to the way in which they act.  Anything in documents must be adhered to in accordance with LPA rules and guidance.

It’s a good idea to make sure your attorneys know where to locate paperwork relating to your affairs should they ever need to act on your behalf.

How much does it cost?

The very minimum cost to prepare Lasting Powers of Attorney would be the registration fee set by The Office of the Public Guardian. They charge a registration fee of £82 per document.  This means, if you would like for both Property and Financial Affairs and Health and Welfare Lasting Powers of Attorney to be set up, The Office of the Public Guardian would require a fee of £164.

Due to the importance of getting Lasting powers of attorney right and accurate, many choose to instruct solicitors firm’s to prepare the documents for them.  This of course ensures correct advice and consideration is given.  Solicitors firm’s will charge their own fees on top of the registration fees above.

As I am a supporter of Care for the Carers, I have set up a partnership with them whereby I offer all Care for the Carer clients/referrals a discount on setting up Lasting Powers of Attorney.  Please do get in touch for further details.

Can I make a Lasting Power of Attorney for somebody else?

The short answer is no.  It is not possible to make a Lasting Power of Attorney on somebody else’s behalf.  The donor (i.e. the person appointing attorneys) must be over 18 and must have full mental capacity to be able to make the documents themselves.  A Certificate Provider is required to sign the Lasting Powers of Attorney to confirm that the person making them has full capacity and understands what they are signing.

If somebody has lost mental capacity and a family member or carer wishes to apply to manage their finances (or health) on their behalf, they must apply to the Court for a Deputyship Order.  This works in the same way as a Lasting Power of Attorney however, is a lot more lengthy, more expensive, more strict, regulated and comprehensive.  I would encourage all who have mental capacity to prepare Lasting Powers of Attorney to avoid a Deputyship Order having to be sought by a family member later down the line!

Find out more

As a supporter of Care for the Carers Jessica has set up a discount for all Care for the Carer referrals when setting up an LPA.  You can contact Jessica at Taylor Rose MW solicitors. Call: 01323 405256 or email: jessicashale@taylor-rose.co.uk. With thanks to Jessica for supporting carers and writing this guide.