Lasting Power of Attorney - what it is and common misconceptions

Lasting Power of Attorney

What it is and Common Misconceptions

*A guide from Burt Brill & Cardens Solicitors*

**This guide will cover:**

• What is a Lasting Power of Attorney?
• Types of Lasting Power of Attorney
• FAQs
• Your Next Steps
• Contact Us
• Testimonials

What a Lasting Power of Attorney is

A Lasting Power of Attorney, or LPA, is a legal document which allows a person to choose someone else to manage their affairs for them, known as an 'attorney'.

**This person can be a friend, relative or a professional person.**

**There are two types of LPA:**

**Health & Welfare** — A LPA that grants authority in relation to a person's personal healthcare, welfare, and medical treatment, when they are unable to do so themselves.

**Property & Finance** — A LPA that grants authority in relation to a person's property and affairs. The attorney could be able to pay the donor's bills, sell their property or investments, and make limited gifts on the donor's behalf.

FAQs

**Doesn't control over your affairs automatically go to your next of kin?**
*In a nutshell, no.*

If the worst should happen and you are incapacitated, you may think that control over your financial and medical affairs would go to your next of kin – that your partner could access a bank account if needed, or could make decisions about your treatment.

However, without a Lasting Power of Attorney for Finances or Health and Welfare, it is not guaranteed that your wishes would be followed.

**If I have a Will, do I need an LPA?**
*A Will only takes effect upon death*

Executors (the people named in your Will to carry out your wishes once you die) do not have authority to act until you pass away and can't make decisions on your behalf.

Your executors can be the same people as your attorneys. You can also have different attorneys under the two different LPAs, so have different people in charge of dealing with your health and welfare vs your property and finances, if you wish.

Attorneys only have authority to act within the scope of the LPA while the donor is alive. Their authority to act ceases upon the donor's death, unless they were made executors in the Will. An attorney cannot change the donor's Will under an LPA.

**Aren't LPAs only for the elderly? Do I need one if I'm young and healthy?**
*Everyone can make a LPA for both finances and health.*

Unfortunately, an accident could occur at any time which might leave you unable to deal with your affairs yourself.

Creating a LPA gives you peace of mind that should the worst happen, your affairs would be in the hands of those you trust.

**Would an attorney be able to make decisions without talking to me first?**
*If they can, the donor must always make their own decision.*

An attorney must consult with the donor when considering any financial decision, and consider carefully whether the donor has the capacity to make the decision for themselves. If they can, the donor must always make their own decision.

The attorney must follow the rules set out in the Mental Capacity Act in order to decipher whether the donor can make a decision. The wishes of the donor when they had capacity should always be taken into account, and an attorney must take into account that capacity is time and subject specific.

Attorneys are overseen by the Office of the Public Guardian. The Office of the Public Guardian has a duty to investigate matters if they suspect the attorney might be acting outside of their authority. This may occur where an attorney is benefitting family members or themselves to the detriment of the donor.

Issues can be reported to the Office of the Public Guardian by a member of the public, a care home, social services, family members, or a co-attorney. If financial abuse is suspected then this must also be raised with social services.

If need be, the Office of the Public Guardian will launch an investigation and may involve the police. If social services feel there is a safeguarding concern they will also launch their own investigation. If an attorney is found to be acting outside of their authority the Office of the Public Guardian may remove that person as an attorney, refer the matter to the police and force the attorney to pay back any money which was wrongly used.

"Capacity is time and subject specific" — What does that mean?

It is common for capacity to be better at certain times of day. If this is the case, and the donor's capacity is better in the afternoon, for example, then the attorney must first try at this time of the day. If the donor can make the decision themselves, then they must be allowed to do so, even if the attorney feels the decision is unwise.

If the donor cannot make the decision on their own and needs some assistance in doing so, the attorney must provide that assistance, taking all practical steps to help the donor. For example, if a donor has suffered a stroke and can only communicate yes or no in these circumstances, a question must have the answer yes or no.

In making a decision on behalf of a donor, the attorney must consider whether they could act in a way which is less restrictive of the donor's rights and freedoms.

Book Your Diagnostic Consultation

Our Lasting Power of Attorney team are experts at navigating difficult situations, reducing stress, and striving for the results you want. We realise this can be a highly delicate and personal situation and you can trust us for full confidentiality and support throughout the process.

At your consultation, you will speak to one of our family solicitors about your unique situation and the next best steps for you. Your solicitor will listen to you, and then map out the next best steps, the time frames they expect and the estimated costs involved.

We offer no-contact consultations meetings by telephone and video call, tailored to suit your needs.

To book your consultation, call our team on **01273 604 123** or email us at **enquire@bbc-law.co.uk**