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Having Lasting Powers of Attorney (“LPAs”) in place allows your affairs to be managed in the event that you lose the ability to manage them yourself. This could be due to illness, disability or an accident. If you wish to create an LPA you are referred to as the donor.
There are two types of LPA; Property and Financial Affairs and Health and Welfare. These allow you to appoint people you trust such as a relative, friend or in some cases a Solicitor to assist with your affairs. The Property and Finance LPA can be effective whilst you still have capacity however the Health and Welfare LPA only comes into effect if you are deemed to have lost capacity.
A Property and Financial Affairs LPA allows you to choose one or more persons to make decisions about your money and property on your behalf. This could include paying bills, collecting benefits and selling your property. This type of LPA can take effect whilst you still have mental capacity but perhaps you are physically unable to manage your affairs for yourself, for example if you are unable to see or write, or unable to leave your house. It will continue in the event that you lose mental capacity.
In the unfortunate case that you lose mental capacity, a Health and Welfare LPA allows decisions to be made on your behalf such as your daily routine, care provisions and the refusal of life-sustaining treatment. These decisions cannot be made by your Attorney whilst you still have mental capacity. Decisions made under the LPA can only be made when it is deemed that you have lost mental capacity. You can choose one or more persons to make these types of decision.
A separate application must be made for each type of LPA, for each donor.
In order for an LPA to be valid, you must have full capacity and understanding at the time of execution. Therefore, if the donor has lost capacity before putting in place an LPA an application should instead be made for the appointment of a Deputy.
We advise you appoint someone you trust implicitly to act as your Attorney. This could be a close relative, friend or even a Solicitor. You are able to appoint the same person under both the Heath and Welfare and Property and Affairs LPA should you wish.
You can appoint more than one Attorney, and can choose whether they are to make decisions jointly or whether they can make them individually as well as together. If you choose the latter, this means that one Attorney will be able to make a decision in the event that the other Attorney is unable to do so. This would also mean the LPA would continue if one Attorney were to pass away before you, or become mentally incapable themselves.
When deciding to create a LPA, there may be certain instructions or restrictions that you wish to include to limit the decisions that your Attorney(s) can make on your behalf. For example, with Property and Finances, you may wish to live in your house for as long as you can and so a restriction on sale could be included. With Health and Welfare, you may wish to restrict your Attorney(s) from making decisions as to life sustaining treatment.
Our Wills, Trusts & Probate team has a wealth of experience in the types of instructions and restrictions that are commonly used in LPA and can provide specific advice to assist you with this decision.
There are a number of principles that Attorneys are required to follow by law.
Each time an Attorney makes a decision, they are required to act in the best interests of the donor. Attorneys must assume that the donor can make their own decisions until it is deemed that they cannot do so and must help the donor to make as many of their own decisions as possible. Also, Attorneys cannot treat the donor as being unable to make a decision just because the decision is unwise. Before Attorneys make a decision for the donor, they must consider whether they can make a decision or act in a way that still achieves the purpose but is less restrictive on the donor’s rights.
There are implications for Attorneys if they breach their duties which can lead to criminal sanctions.
If you are looking to put a Lasting Power of Attorney in place, or are looking for advice as to whether this would be an appropriate route for you to take, please get in touch with our Wills, Trusts & Probate team. We are experienced in advising our clients on all aspects of Lasting Powers of Attorney.
In addition to this, the Partners at Glanvilles LLP are willing to act as Attorneys in appropriate cases.