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Factsheet: Preparing A Lasting Power Of Attorney

A guide to issues to consider when preparing a Lasting Power of Attorney

  1. What to consider when choosing an Attorney
  2. Who to choose as your Attorney?
  3. How many Attorneys to choose?
  4. Replacement Attorneys
  5. Decisions Attorneys can make
  6. Notification of a Power of Attorney
  7. Enduring Power of Attorney (pre-2007)
  8. Legal Power of Attorney advice

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:

  • A Lasting Power of Attorney covering decisions about your property and finances. This power of attorney deals with everything relating to your affairs, from bills to be paid to property to be sold or investments or bonds cashed in. LPAs in relation to property and finance are useful – and in many cases necessary – to allow decisions to be made about day-to-day issues including access to your bank accounts, pensions and benefits, and paying for your care.
  • A Lasting Power of Attorney covering decisions about health and welfare. This can relate to relatively simple matters such as where you should live as well as more complicated decisions such as whether you should receive certain types of medical treatment or whether an Attorney should be able to help doctors decide about life-sustaining treatment. While this might seem less relevant in terms of your day-to-day matters, this type of power of attorney can become vital if you lose mental capacity and important decisions about your welfare are required.

What to consider when choosing an Attorney

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.

Who to choose as your Attorney?

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.

How many Attorneys to choose?

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.

Replacement Attorneys

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.

Decisions Attorneys can make

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:

  • What property and finances do you want your Attorneys to make decisions about;
  • What is the limit of money your Attorneys can make decisions about;
  • What provision should there be for payment and expenses for your Attorneys;
  • What are your specific instructions and prohibitions;
  • What do you require Attorneys to seek guidance or specialist advice on;
  • Where do you want to live;
  • What about your medical treatment and care;
  • What about decisions on life-sustaining treatment. While these decisions are a matter for doctors, they are required to listen to Attorneys’ views. Through your LPA you can give your Attorneys instructions as to your wishes and intentions.

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.

Notification of a Power of Attorney

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.

Enduring Power of Attorney (pre-2007)

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.

Legal Power of Attorney advice

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.

If you would like to find out how a Lasting Power of Attorney solicitor can help you, contact us today on 01273 609911, or email info@ms-solicitors.co.uk.

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