What is a Lasting Power of Attorney?

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Access Legal can provide advice on powers of attorney to manage your affairs in the future when you or your loved one can no longer do so.

What is a Power of Attorney?

A power of attorney is a legal arrangement that provides authority for a person (known as the attorney) to help you manage your finances and wellbeing should you no longer be capable of doing so. The attorney can be anyone you choose, but more often than not it's a relative, trusted adviser or a life-long friend.

Many people have an Enduring Power of Attorney (EPA) which could be made up until 30 September 2007. Since that date, although an EPA is still valid and we continue to register them, they have been replaced by the Lasting Power of Attorney (LPA).

It’s also important to note that an EPA only gives the attorney effective control over finance and property affairs. It does not confer any authority in matters of personal welfare. Anyone with an EPA would be well advised to consider reviewing their arrangements and updating to an LPA.

There are two types of LPA, which provide different authority to your attorneys:

Lasting power of attorney (property and financial affairs). Your attorney can collect your pension or benefits, pay your bills, deal with your bank or building society, make investments, complete tax returns, buy and sell property including your home and make certain gifts.

Lasting power of attorney (health and welfare). Allows your attorney to do things on your behalf such as buying your clothes, deciding if it is time for you to move into residential or nursing care and give consent to or refuse life sustaining treatment depending on what your wishes are in those circumstances.
I want to know

How do I give Power of Attorney to someone?

A Lasting Power of Attorney is a powerful and binding legal document that allows you (the donor) to choose the people you want to make decisions on your behalf when you lack the mental capacity to make those decisions yourself.

An LPA cannot be used until it has been registered with the Office of the Public Guardian (OPG). Additionally Health and Welfare LPAs cannot be used until the donor lacks capacity to make those decisions themselves. If you are making a Property and Financial Affairs LPA, you may include a restriction meaning that the LPA similarly cannot be used until you have lost capacity.

Anyone over 18 can act as an attorney but an attorney for Property and Financial Affairs cannot be an undischarged bankrupt. If they become bankrupt after your LPA has been registered, they will not be able to continue to act on your behalf. If you choose your spouse or civil partner, they will be unable to act as your attorney if you divorce or legally end the relationship unless you include a condition in the LPA that they can continue to do so.

It is common for two or three attorneys to be appointed (one of whom is frequently your solicitor) and you can stipulate how you want them to make decisions on your behalf. Arranging a Lasting Power of Attorney helps to plan what happens to you and your finances according to your wishes. Our expert lawyers, some of whom are members of Solicitors for the Elderly, can help guide you through the process.

 

How long will it take for my Power of Attorney to complete?

Despite it being a fairly demanding process, a Power of Attorney (POA) can be completed in a relatively short time. Paper applications can be made and it is possible to do everything on-line - the relevant forms can be found on the gov.uk website.

The process can still be a complicated one and it’s important not to make any mistakes on the forms, so it is always best to get professional legal advice no matter how you make the application.

Typically, it takes up to 10 weeks to register an LPA if there are no mistakes in the application. Although not required with an LPA, some donors still choose ‘people to notify’ as concerned parties. They’ll have three weeks to raise any concerns with the Office of the Public Guardian (OPG) but even if this is not done, the OPG still has a ‘waiting period’ during which objections can be raised before the LPA is finally registered.

The procedure is slightly different in Scotland and Power of Attorney applications north of the border should be processed within 30 working days of receiving the document. Electronic submissions can be processed more quickly than those sent by post.

In either jurisdiction, once a POA is drafted and registered, it will last indefinitely unless you decide to terminate it and it ceases to have effect on death. In that case, the stipulations you have made in your will take precedence.

If I have a case disputing a power of attorney

You may wish to dispute a Power of Attorney (POA) if you consider that it was granted to the wrong person or believe the donor did not have the necessary capacity for the role. You may also have concerns that an attorney’s actions are not in the donor’s best interests.

Although not required when registering a Lasting Power of Attorney, certain individuals must be notified and given the chance to object before an Enduring Power of Attorney (i.e. made before 30 September 2007) is registered. The mental capacity of the individual donor (the person making the POA) also has to be independently confirmed. A Power of Attorney signed as a result of fraud or undue influence is void.

The two types of LPA - Property and Financial Affairs and Health and Welfare - can only be used once registered with the Office of the Public Guardian. An LPA for Property and Financial Affairs does not entitle the attorney to make decisions concerning the donor’s health and welfare and similarly a Health and Welfare LPA does not confer any power over the donor’s finances.

An attorney has to act in the best interests of the donor and in line with the principles of the Mental Capacity Act 2005. If they fail to do so, their role can be challenged. We can provide specialist help and advice before you take any action, as liaising with the Court of Protection is a complex and lengthy process, especially if you are involved in a dispute.

More about Power of Attorney

Many of us worry about how we'll cope in old age or when we lose the capacity to look after our own affairs. A Lasting Power of Attorney can be put in place to answer those concerns and act as a reassurance that your best interests will still be looked after. It can be put in place at any time so that when you need it, you can get help immediately. We know from our own experience in dealing with thousands of clients that putting in place powers of attorney is one of the most important things they feel they've ever done.

You can make one form of lasting power of attorney without making the other. There's no requirement to do both, but a lasting power of attorney must be registered, either by the donor or the attorney, before it can be used.

Appointing an Attorney

There are lots of things you need to think about when considering powers of attorney and appointing an attorney, not least whether you believe the person to be trustworthy and to have your best interests at heart. Our experts will take the time to explain your options..

Planning ahead

Arranging a lasting power of attorney helps to plan what happens to you and your finances in accordance with your wishes while you're alive, but it's also important to ensure your wishes are carried out on your death. The best way to make sure this happens is to make a will. At Access Legal we can arrange for a will at the same time as helping you with your LPA.

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