Do I Need A Lasting Power Of Attorney?

Published: 13/03/2018

What is a LPA?

A LPA is one of the most important documents you’ll ever make. It names who will make decisions on your behalf should you lose mental capacity (e.g. as a result of an accident  affecting your ability to make decisions or if have dementia  ). Those decisions can range from how your money will be spent to where you will live.

Do I need a LPA?

Yes, everyone over the age of 18 really should have one or both types of LPA.

What is an attorney?

An attorney is someone who is appointed to make decisions on behalf of another person (the ‘donor’), based on what has been outlined in that person’s LPA.  Those decisions could concern property and financial affairs, health and welfare, or both. The attorney must agree to take on the role.

What power will my attorney have?

The powers granted to your attorney  will be that they can make decisions on your behalf  in relation  to  matters  concerning your financial affairs and your personal health and welfare decisions, but in doing so they are to always act in your best interests.

What powers should you give your attorneys?

You can give your attorneys powers to make all decisions on your behalf in relation to all of your matters financial and personal affairs or you can set restrictions or conditions on certain decision making or you can state that they do not have power to make certain decisions relating to certain property or health care decisions. The powers that you give your attorney can vary depending on the whether it’s a property  and finance LPA or a health and welfare LPA. You may stipulate within each LPA what they can and can’t do, or whether there are restrictions or conditions on their decision making. Care must be taken when imposing restrictions as they can create a situation where there is no power to make a certain decision and so the  donor’s family may have to apply to the Court of Protection to be appointed as their Deputy, to allow a particular decision to be made or at worst invalidate the LPA. These would lead to a more costly process.

Who can be your attorney?

Your attorney must be over 18 years old and have mental capacity. You could choose:

-       Your husband, wife or partner

-       A relative such as your son, daughter, brother or sister

-       A close friend

-       A professional, such as a solicitor or your family doctor

Of course, your attorney should be someone you trust. After all, the decisions they make on your behalf could be life changing. There are a few exceptions who can be an attorney, for example, if an individual is bankrupt or subject to a Debt Relief Order, they cannot be your property and financial affairs attorney. These exceptions are designed to safeguard the donor and stop attorneys from taking advantage of the trusted situation they’ve been put in.

If you do not have any family or close friends, you may choose the solicitor who draws up your will and LPA to be your attorney. 

You can have more than one attorney and you can appoint replacement attorneys should your chosen attorneys be unable to act at the time when hey are needed or have died before you.

What to ask yourself before choosing an attorney

1)    Do I trust this person?

Your attorney will need to be someone you trust to act in your best interests when you are unable to do so yourself. However, how well you know a person is not always the best indicator of whether they will be a good attorney. For example, your son or daughter, whom you have known and trusted your whole life, may be a bad at managing money. If so, you may want someone else in your family to be named in your property and finance attorney.

2)    Can this person look after their own affairs?

Being someone’s attorney is a big responsibility, as discussed above. If a relative or friend is not so great at managing their own affairs (such as finances, property or health), they probably aren’t suited to being an attorney. Your attorney will need to juggle their own life plus all the workings of yours.

3)    Are you happy for them to make decisions for you?

Your attorney could make very important decisions for you, if you have lost mental capacity, such as where you live, how your money is spent and how you are cared for. You must be sure you trust your attorney to make these on your behalf, according to what your wishes are now should the worst happen.

How many attorneys can I appoint?

While there is no limit, and this will depend on your own personal circumstances, the most usual number is two. It’s rare you would need more than four attorneys. If you have appointed more than one attorney, you can decide whether you want them to act jointly (when all attorneys must agree to any decisions made) or jointly and severally (when one of the chosen attorney is allowed to make a decision on behalf of themselves and the other attorneys). Your solicitor can explain these options and which could be best for you.

Do I need a replacement attorney?

If your main attorney can no longer act for you, your replacement attorney would step in. It’s a good idea to have a replacement attorney in case your original attorney passes away, loses mental capacity, gets divorced or separated from the donor; has revoked their attorneyship (they don’t want to do it anymore) or become bankrupt or subject to a debt relief order (in the case of property and financial affairs LPAs).

How do I get a LPA?

You will need to get in touch with a solicitor who is experienced in this area, who will talk you through the steps, and get your LPA drawn up for you.

At GWlegal, you will be looked after personally by Linda Cummins, a solicitor with almost 20 years’ experience.  

To get in touch with Linda and her team please send us in an enquiry.

Content correct at time of publication.