What is a lasting power of attorney?

There may come a point in your life when you begin to think about how your ability to make certain decisions is impacting you or may impact you in future. As a result, you might have heard of the option to appoint an attorney, but what does “power of attorney” mean exactly?

Strictly speaking, a power of attorney is a document in which one person, known as the ‘donor’, gives another person, known as the ‘attorney’, the power to act on his or her behalf and in his or her name and best interest.

A power of attorney comes in handy when you’re no longer able to make decisions on your own, or you choose not to. Legally, your family members don’t automatically have the right to take on this responsibility on your behalf, so you’ll need to appoint someone using a formal power of attorney document.

What if there is no lasting power of attorney if I lose mental capacity?

If no power of attorney is in place, what happens after you lose capacity may lead to high costs for your family members, as they may need to go through the courts to gain decision-making powers. In the meantime, decisions may be made for you, by others, that don’t reflect your true wishes.

What rights does a lasting power of attorney have?

There are two powers which you may give: ordinary or lasting powers.

Ordinary powers are general or specific powers allowing your attorney to deal with things on your behalf while you still have mental capacity, limited to your property and/or financial affairs.

A lasting power of attorney (LPA) gives the attorney the responsibility and permission to act on behalf of an individual in the event that they lose mental capacity. There are two types:

• Health and welfare: the attorney can decide matters such as medical care, accommodation, daily routine and giving or refusing consent to life-sustaining treatments.
• Property and financial affairs: the attorney will have the authority to manage bank accounts, deal with benefits and pensions, pay bills or buy and/or sell property.

Who should I appoint as lasting power of attorney?

It’s up to you who you choose to appoint as your attorney; however, choosing a power of attorney should be based on who you can trust. This could be your friend, spouse, partner, or another family member who is over the age of 18 and has mental capacity to make their own decisions. For financial decisions, it could also be a solicitor.

When choosing an attorney, you may wish to consider the following:

• Whether they are willing and comfortable to act on your behalf
• How the individual handles their own finances
• Which decisions you’d feel comfortable trusting them with
• If you and the individual share the same beliefs and principles

You may choose to appoint more than one attorney. They can either work together or separately when making decisions. You can specify who does what and how they must do it – either jointly, or jointly and severally. You can also name substitute attorneys if you wish.

• “Jointly” means they must make decisions together on all matters they’ve been appointed for.
• “Jointly and severally” means you may opt for them to work together on certain matters and separately on others.

What are the responsibilities of a lasting power of attorney?

You may be thinking: “I have a power of attorney, now what?” Well, when you create your LPA, you should be aware of some of your attorney’s responsibilities.

While a will can be written to ensure your wishes are carried out after you pass away, an LPA protects your interests during your lifetime. Specifically, there may come a time when you’re unable to make decisions on your finances or health and wellbeing due to a serious accident, or an illness which affects your mental capacity, such as dementia.

An lasting power of attorney doesn’t, however, take your ability to make decisions away from you entirely, even if you lose mental capacity, and your attorneys don’t carry out their responsibilities without your input. In other words, they should assume that you’re able to make your own decisions before making them for you.

It should be your wishes that are carried out. However, if you struggle to make key decisions on your own, your attorney should help you reach a decision by making sure they’re communicating with you in a way that’ll help you better understand things.

While an attorney must ultimately act in your best interest, they mustn’t make decisions for you just because they don’t agree with the one you’ve made.

You can appoint a solicitor to make decisions on your finances. They will need to show the registered LPA to banks and other institutions so they can note down the solicitor’s authorisation to speak with them and give instructions. Under a health LPA, your solicitor may want to get in touch with your doctor to let them know they are appointed.

LPAs must be registered with the Office of the Public Guardian before they can be used. There is guidance online about this or, alternatively, we can help you.

When it comes to health, welfare, property, or finance, what does a power of attorney do?

For matters relating to property and financial affairs or health and welfare, an attorney appointed under an LPA will be responsible for helping you with decision making. Their duties can cover:

• The buying or selling of your property
• Paying your bills, including your mortgage
• Making property or monetary gifts on your behalf
• Where you live and the type of medical care you receive if you’ve lost the mental capacity to decide for yourself
• Making decisions for you about potentially life-saving treatment

What decisions cannot be made by a legal power of attorney?

The law already sets out certain things an attorney can’t do, but you can also specify the types of decisions they can and can’t make on your behalf.

To state a couple, the law states that attorneys can’t make a large financial gift or donation on your behalf, and, on property and financial matters, an LPA shouldn’t mix their finances with yours. They also can’t change your will without a specific order from the Court of Protection.

Why choose Slater and Gordon?

It’s not uncommon for questions to arise, such as: “what can a power of attorney do, what does it mean to have power of attorney, when should you get a power of attorney, and what is the role of a power of attorney?”

The right answers aren’t always available online, especially those that are suited to your specific circumstances. To avoid errors and to ensure you receive the most accurate information, it’s best to seek legal advice before making a decision from a lasting power of attorney solicitor.

If you’re worried about one day losing the mental capacity to make your own decisions, make sure you’ve got an LPA in place. Our expert lasting power of attorney solicitors can help you further understand what responsibilities and conditions come with appointing an attorney.

For more information, and to find out how our lasting power of attorney solicitors can support you, simply call us on 0330 041 5869. Or, if you prefer, you can contact us via our online form or web chat.