Lasting Power of Attorney

What Is a Lasting Power of Attorney?

A lasting power of attorney is a legal document that allows an individual (the donor) to appoint one or more persons (the attorneys) to make decisions on their behalf. The decisions can relate to personal welfare, healthcare, and financial matters. An LPA remains effective even if the donor loses mental capacity, differentiating it from an ordinary power of attorney, which becomes invalid if the donor becomes mentally incapacitated.

Legal Framework

The Mental Capacity Act 2005 primarily establishes the legal framework for LPAs in England and Wales. This act sets out the requirements for creating a valid LPA, the duties of attorneys, and the mechanisms for registration and oversight. The Office of the Public Guardian (OPG) is responsible for registering and regulating LPAs, ensuring that attorneys act in the donors’ best interests.

Key Concepts

• Donor: The person who creates the LPA and grants authority to the attorney.
• Attorney: The person appointed by the donor to act on their behalf.
• Mental Capacity: The ability to make decisions for oneself, determined by the ability to understand, retain, and evaluate information to make a decision and communicate that decision.
• Office of the Public Guardian (OPG): The regulatory body overseeing LPAs and protecting individuals lacking mental capacity.

Types of Lasting Power of Attorney

There are two main types of LPAs, each serving different purposes and covering distinct areas of decision-making.

LPA for Property and Financial Affairs

An LPA for Property and Financial Affairs allows the attorney to manage the donor’s financial matters and property. This can include:

• Managing bank accounts
• Paying bills
• Collecting benefits or pensions
• Buying or selling property
• Making investments

This type of LPA can be used as soon as it is registered, with the donor’s permission, and continues to be valid if the donor loses mental capacity.

LPA for Health and Welfare

An LPA for Health and Welfare gives the attorney the authority to make decisions about the donor’s personal health and welfare. This can include:

• Decisions about medical treatment
• Decisions about where the donor should live
• Day-to-day care decisions, such as diet and daily routine
• Decisions about life-sustaining treatment

This type of LPA only comes into effect when the donor loses the capacity to make these decisions themselves.

Creating a Lasting Power of Attorney

Creating a lasting power of attorney involves several steps, each requiring careful consideration to ensure the document is valid and accurately reflects the donor’s wishes.

Choosing an Attorney

Selecting an attorney is a critical decision. The chosen individual should be trustworthy, competent, and willing to act in the donor’s best interests. Donors can appoint more than one attorney and specify whether they should act jointly (all decisions made together), jointly and severally (attorneys can act together or independently), or jointly for some decisions and severally for others.

Drafting the Document

The LPA document must be drafted to reflect the donor’s wishes accurately. It should specify the attorney’s authority’s scope, limitations, and specific instructions or conditions. The standard forms provided by the OPG must be used to create an LPA.

Certification of Capacity

In order for a Lasting Power of Attorney (LPA) to be considered valid, a certificate provider must confirm that the individual creating the LPA (the donor) understands the document and is not under any undue influence. The certificate provider can be a professional, like a solicitor or doctor, or someone who has been acquainted with the donor for at least two years.

Signing and Witnessing

The LPA document must be signed by the donor and witnessed by an independent adult. The attorney(s) must also sign the document to accept their appointment, and their signatures must be witnessed.

Registration

An LPA must be registered with the OPG before it can be used. The registration process involves submitting the completed and signed document to the OPG along with the required fee. The OPG will review the document and, if valid, register it and return a certified copy to the donor and attorney.

Case Studies

To illustrate the practical implications of Lasting Powers of Attorney, let’s explore a few case studies that highlight common scenarios and their outcomes.

Managing Financial Affairs

Mr. Anderson, an elderly gentleman, decided to create a Lasting Power of Attorney (LPA) for Property and Financial Affairs. He appointed his daughter, Lucy, as his attorney. As Mr Anderson’s health declined, Lucy was able to manage his bank accounts, pay his bills, and ensure his financial affairs were in order. This arrangement provided Mr. Anderson with peace of mind, knowing his finances were being managed responsibly, and allowed Lucy to support her father effectively.

Health and Welfare Decisions

Mrs. Smith, who has been diagnosed with early-stage Alzheimer’s disease, created a Lasting Power of Attorney (LPA) for Health and Welfare and appointed her husband, John, as her attorney. As her condition worsened, John made decisions regarding her medical treatment and care arrangements using the LPA. This ensured that Mrs. Smith received the care she desired and alleviated stress on her family.

Overseas Absence

During an extended trip abroad, Mr. and Mrs. Johnson appointed their son, David, to manage their financial affairs by creating a Lasting Power of Attorney (LPA) for Property and Financial Affairs. This legal document allowed David to handle property transactions, pay bills, and manage investments while his parents were away. The LPA provided a smooth and seamless way to manage their affairs and gave them peace of mind during their travels.

Complex Health Decisions

When Mrs. Brown became unable to make decisions for herself, her sister Anna, who had been appointed as her attorney through a Lasting Power of Attorney (LPA) for Health and Welfare, used the LPA to make important medical and rehabilitation decisions for Mrs. Brown. Anna consulted with medical professionals to ensure that Mrs. Brown’s treatment and care aligned with her wishes, providing her with the best possible care during her incapacitation.

Strategic Considerations

Creating and managing a lasting power of attorney requires strategic planning and expert legal advice. At DLS Solicitors, we work closely with our clients to develop effective strategies to ensure that their LPAs are robust and aligned with their wishes.

Regular Review and Updates

Regularly reviewing and updating an LPA is crucial to ensuring it remains aligned with the donor’s current wishes and circumstances. Significant life events, relationship changes, and health developments should prompt a review of the LPA.

Clear Instructions and Limitations

Providing clear instructions and limitations in the LPA document can help prevent misunderstandings and ensure that the attorney acts according to the donor’s wishes. This includes specifying the scope of authority, conditions, and specific decisions the donor wants to control.

Communication with Attorneys and Family

Open communication with the appointed attorney(s) and family members about the Lasting Power of Attorney can help manage expectations and reduce the likelihood of disputes. Informing them about the responsibilities and limitations of the LPA ensures everyone understands the donor’s intentions.

Legal Compliance

It is vital to ensure that the creation and use of a lasting power of attorney comply with legal requirements. Our solicitors provide expert guidance to ensure all formalities are met, from drafting the document to registering it with the OPG.

Legal Assistance and Guidance

At DLS Solicitors, we offer a range of services to support clients in all aspects of creating and managing lasting powers of attorney, including:

Legal Advice and Consultation

Our experienced solicitors provide personalised legal advice on the implications of different types of LPAs, helping clients understand their options and develop effective strategies.

Drafting and Reviewing Documents

We assist clients in drafting and reviewing LPA documents to ensure they are comprehensive, clear, and aligned with the client’s wishes. Our solicitors ensure that all legal requirements are met, and the documents are properly executed.

Registration with the OPG

Our team manages the registration process with the Office of the Public Guardian to ensure that Lasting Powers of Attorney are registered accurately and promptly. We offer assistance in completing the required forms and paying the necessary fees.

Dispute Resolution

When disputes arise regarding the use or validity of a lasting power of attorney, our solicitors provide strong dispute-resolution services. We strive to achieve amicable solutions that safeguard our clients’ interests and maintain relationships.

Conclusion

A Lasting Power of Attorney (LPA) is an important tool for estate planning and personal management. It provides a framework for decision-making in situations where the donor may be unable to act independently. Understanding the various types of LPAs and strategic planning can help individuals ensure that their affairs are managed according to their wishes.

At DLS Solicitors, we are dedicated to offering expert guidance and support to our clients. We help them navigate the complexities of creating and managing lasting powers of attorney. Whether you are drafting a new LPA, updating an existing one, or addressing disputes, our team is here to assist you every step of the way, ensuring peace of mind and financial security for you and your loved ones.

Our commitment to clear communication, meticulous planning, and personalised service ensures that your Lasting Power of Attorney reflects your wishes and can adapt to life’s changes. You can trust DLS Solicitors to guide you through the intricacies of Lasting Powers of Attorney and all aspects of estate planning, safeguarding your future and protecting your interests.