Lasting Powers of Attorney – What you need to know

A Lasting Power of Attorney (LPA) is a legal document that lets you appoint people to help you make decisions or make decisions on your behalf.

The people you appoint to help you are referred to as your ‘Attorneys’. An Attorney can be any person aged over 18. They do not have to live in the UK or be a British Citizen. You may wish to appoint a family member or friend, or you can appoint a professional such as an Accountant or Solicitor to act on your behalf.

“You can only create an LPA whilst you have capacity.”

You can only create an LPA whilst you have capacity.  If you lose capacity and someone needs to manage your affairs, they will need to apply the to the Court of Protection for a Deputyship Order.

LPAs have to be registered with the Office of the Public Guardian before they can be used. Once everything is in place you can have peace of mind that you have appointed someone to champion your best interests when you are unable to do so, whether it is caused by illness, old age, or an accident.

Types of LPA

There are several types of LPAs:

• Property and Financial Affairs
• Health and Welfare
• Business LPA

Property and Financial Affairs LPA

A Property and Financial Affairs LPA gives your Attorney(s) the power to manage your property and finances in the same way they could manage their own. For example, they could sell your property, open close and operate your bank accounts, deal with the sale of any other investments and manage any pensions, benefits or allowances that you receive.

Property and Financial Affairs LPA have proved themselves as a vital tool where joint bank accounts are involved. For example, if a husband and wife have a joint account and one spouse loses capacity, then the spouse with capacity will not be able to access or make decisions regarding the joint account without a Property and Financial LPA.

“Property & Financial Affairs LPAs are useful for joint bank accounts”

If you run a business, then it is possible to have two separate Property and Financial Affairs LPAs. One can be dedicated to your personal affairs, and the other dedicated to business affairs. For more information, please see Business Lasting Powers of Attorney below.

Health and Welfare LPA

A Health and Welfare LPA allows you to appoint Attorneys to make decisions on your behalf regarding your personal health and welfare. These decisions can only be made when you lack capacity to make these decisions for yourself, for example if you are unconscious or because of a condition such as dementia.

You can grant your Attorneys the power to make decisions regarding life sustaining treatment and other significant decisions such as the type of medical treatment and health care you could receive and making decisions about care homes. It is important to know that you can include instructions and guidance to your Attorney about how they should make decisions.

Business LPA

Business LPAs are a form of Property and Financial Affairs LPA which only takes effect over your business affairs.

If you had a Property and Financial Affairs LPA in place, but not a Business LPA in place, it could mean the persons you have appointed under your Property and Financial Affairs LPA are able to make these corporate decisions on your behalf. The Attorneys appointed under the Property and Financial Affairs LPA may have no knowledge of your business, and ultimately may not be the best persons to be managing such affairs.

A Business Lasting Power of Attorney allows you to appoint the best people to administer your commercial affairs when you are unable to. These are often people who have a good working knowledge of your business affairs.

The Attorneys appointed under your Business LPA will be able to sign cheques and other important documentation on your behalf. This can be particularly useful if you become unwell, seriously injured or become mentally incapable.

Appointing Attorneys

As previously mentioned, you will need to appoint people to act as your ‘Attorney(s)’. They must be over 18 and must not have been declared bankrupt. When appointing someone to act, some things to think about include about how well you know them and if you trust them to make decisions in your best interests.

You can appoint a minimum of one person to act as your Attorney. In practice, most people appoint two or three at most, but you can appoint more than this. You can also appoint replacement Attorneys. Your replacement Attorneys will step in if your initial Attorneys are no longer able to act.

One you have chosen who should act as your Attorney, you can stipulate how they can act and how they should make decisions. You can also include guidance to your Attorneys to aid them in the event they need to make any decisions. For example, you can instruct your Attorneys to act ‘jointly and severally’. This means that your Attorneys could act together or apart when making decisions. Alternatively, you could appoint them to act jointly only, meaning that all Attorneys have to make decisions together.

There is no ‘one size fits all’ approach to appointing and instructing your Attorneys. There are individual advantages and disadvantages in doing so, and it is best practice to obtain legal advice before making any decisions.

Costs

As well as legal fees, there is a registration fee payable to the Office of the Public Guardian. This fee is £82 per document to be registered. If a Lasting Power of Attorney is not registered, it cannot be used by your Attorneys.

If you have any questions about Lasting Powers of Attorney or if you would like help with any estate planning, please contact either Kerry Blackhurst (Kerry@bbslaw.co.uk) or Carolyn Watson (carolyn@bbslaw.co.uk) in the BBS Private Client Team.