Financial Mortgage Advice

Lasting Power of Attorney

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A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more people to make decisions on your behalf during your lifetime. The people you appoint to manage your affairs are called the ‘attorneys’.

An LPA is a separate legal document to your Will, although many people put them in place at the same time as getting their Will written, as part of wanting to plan for the future.

 

You can use a lasting power of attorney to plan for when you no longer have capacity to make your own decisions, and to make sure that these decisions are handled by someone you trust.

This includes decisions about your:

  • finances
  • property
  • future healthcare
  • future personal care and welfare.

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During your lifetime

Once you have an LPA in place, you can have peace of mind that there is someone you trust to look after your affairs if you become unable to do so yourself during your lifetime. This may occur, for example, because of an illness, old age or an accident.

Having an LPA in place can allow your attorney to have authority to deal with your finances and property, as well as make decisions about your health and welfare. Your LPA can include binding instructions together with general preferences for your attorney to consider. Your LPA should reflect your particular wishes so you know that the things that matter most would be taken care of.

Required legal capacity

You can only put an LPA in place whilst you are capable of understanding the nature and effect of the document (for example, you have the required legal capacity). After this point, you cannot enter into an LPA, and no one can do so on your behalf.

Many people don’t know that their next of kin have no automatic legal right to manage their spouse’s affairs without an LPA in place, so having to make decisions on their behalf can become prolonged and significantly more expensive.

A Health and Welfare Lasting Power of Attorney can generally make decisions about matters including:

  • Where you should live
  • Your medical care
  • What you should eat
  • Who you should have contact with
  • What kind of social activities you should take part in
  • You can also give special permission for your attorney to make decisions about life-saving treatment
 

A Property and Financial Affairs Lasting Power of Attorney can cover decisions such as:

  • Buying and selling property
    Paying the mortgage
    Investing money
    Paying bills
    Arranging repairs to property

Manage your affairs

Without an LPA in place, there is no one with the legal authority to manage your affairs, for example, to access bank accounts or investments in your name or sell your property on your behalf. Unfortunately, many people assume that their spouse, partner or children will just be able to take care of things, but the reality is that simply isn’t the case.

In these circumstances, in order for someone to obtain legal authority over your affairs, that person would need to apply to the Court of Protection, and the Court will decide on the person to be appointed to manage your affairs. The person chosen is appointed your ‘deputy’. This is a very different type of appointment, which is significantly more involved and costly than being appointed attorney under an LPA.

If you wish to have peace of mind that a particular person will have the legal authority to look after your affairs, and you want to make matters easier for them and less expensive, then you should obtain professional advice about putting in place an LPA.

Health and Welfare Lasting Power of Attorney

Allows you to name attorneys to make decisions about your healthcare, treatments and living arrangements if you lose the ability to make those decisions yourself. Unlike the Property and Financial Affairs LPA, this document will only ever become effective if you lack the mental capacity to make decisions for yourself.

If you can’t communicate your wishes, you could end up in a care home when you may have preferred to stay in your own home. You may also receive medical treatments or be put into a nursing home that you would have refused if only you had the opportunity to express yourself; and this is when your attorney, appointed by the LPA, can speak for you.

Property and Financial Affairs Lasting Power of Attorney

Allows you to name attorneys to deal with all your property and financial assets in England and Wales. The LPA document can be restricted, so it can only be used if you were to lose mental capacity, or it can be used more widely, such as if you suffer from illness, have mobility issues or if you spend time outside the UK.

Attorney

The Mental Capacity Act allows you to appoint someone called an attorney under a lasting power of attorney. This attorney does not have to be a lawyer or someone with specialist knowledge. So you could name someone like your partner, a family member, a friend or a professional.

This attorney has the legal power to:

make certain decisions for you
continue to make decisions for you after you have lost capacity to make the decisions for yourself.

Do you want to appoint replacement attorneys, and if so, when?

It is especially useful to have a replacement attorney if your original attorneys have been appointed jointly, but is also sensible as a way of “Hoping for the best and preparing for the worse!”
Your choice of replacement attorney should be considered in the same way as your original attorney, so read the section above on the choice of attorney.
You need to decide which attorney they will be replacing (in the absence of a choice from you, the replacement attorney will replace the first attorney who needs replacing).

Refusing medical treatment decisions

You can give your healthcare attorney power to refuse certain treatments for you.

For example:

cardiac resuscitation after a heart attack
blood transfusions
medication
electroconvulsive therapy (even if you are sectioned and your responsible clinician or approved clinician prescribes this treatment).
But your healthcare attorney will not be able to refuse treatment for you if:

You are sectioned under the Mental Health Act in the future, and your treatment is prescribed by the responsible clinician or approved clinician in charge of your treatment at that time. Your attorney will have no legal power to refuse the treatment, unless it is electroconvulsive therapy.
It is life-saving in an emergency situation (unless you have stated very clearly on your lasting power of attorney form that they can refuse life-saving treatment for you).
You have the capacity to refuse the treatment for yourself.

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