A guide to issues to consider when preparing a Lasting Power of Attorney
Most people think a Power of Attorney is only about their finances and affairs, but this is a common misconception. There are two types of Lasting Power of Attorney (LPA) and you need to decide whether you want to make one LPA or two. The two LPAs are:
Once you have decided to make an LPA you need to think about a number of things. Your primary decisions involve your Attorney or Attorneys. An Attorney is the person you appoint to act for you when you lose capacity. This person will ‘stand in your shoes’ and make certain decisions for you.
The first thing to consider is who you would like to give Power of Attorney to. Most people choose to give Power of Attorney to their spouse, children or even a professional Attorney, but you can choose whoever you like. You need to think about who you can trust to make appropriate decisions for you and whether you want them to work together or individually.
You need to decide how many Attorneys you want to appoint. If you appoint only one person, consider what could go wrong if you have lost mental capacity and that person is no longer able to act on your behalf. What if they become ill or die before you? By then it will be too late to complete another Power of Attorney form and your family will have to consider Deputyship.
You can ensure you are protected in the event that your original Attorney is unavailable or unable to make decisions for you by having a Replacement Attorney.
While of course you trust your Attorneys, you may be nervous about giving them the power to make all decisions for you. Your Attorney will need to be clear about what decisions they can and cannot make, what they can do by themselves (if you are appointing more than one Attorney) and about what your wishes are. It is therefore important to think about precisely what powers, restrictions and guidance you give to your chosen Attorneys. The following list gives an idea of factors to consider:
Once you have decided what you want, it is always advisable to seek professional advice to ensure that the completed Power of Attorney form reflects your intentions properly while remaining workable. The Office of Public Guardian rejects forms where the powers are not workable.
In addition to the people you choose to appoint as your Attorney(s), in most cases other people must be notified about the Power of Attorney. This is a safeguard designed to prevent Attorneys from abusing any position of trust and is a useful way of making sure certain people are not surprised when Attorneys try to act for you in the future.
Many people have already completed a Power of Attorney form. If this was before 2007 this will be an Enduring Power of Attorney (EPA) rather than a Lasting Power of Attorney. EPAs are still perfectly valid – therefore if you have an EPA, you do not need to make a LPA unless you wish to cancel or amend the EPA. However, the EPA regime only allows your Attorney to make decisions about your property and finances. If you also want them to make decisions about your health and welfare should the need arise, you will want to make a separate LPA for this purpose.
Anyone seeking to draw up a Lasting Power of Attorney should take specialist advice. You need to ensure the document correctly reflects your wishes while remaining workable. This is especially important as the Office of Public Guardian rejects any LPA it considers unworkable.