A guide to issues to consider when preparing a Lasting Power of Attorney
A common misconception is that a Power of Attorney is only about finances and affairs. 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:
The first thing to consider is to whom you would like to give Power of Attorney. Most people choose their spouse, children or even a professional to act as their Attorney, but you can choose whoever you want. You need to think about who you trust to make appropriate decisions for you, and if you choose more than one Attorney, whether you want them to work together or individually.
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 applying for Deputyship.
You can protect yourself if your original Attorney is unavailable or unable to make decisions by naming a Replacement Attorney within your application. The replacement will take over should your original Attorney be temporarily or permanently unable to act and will ensure your LPA is still valid.
While you trust your Attorneys, you may be nervous about giving them the power to make all decisions for you. You will need to give your Attorney clear guidance 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 important to think carefully about the powers, restrictions and guidance you give to your Attorneys. Some factors to consider include:
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 practical. The Office of Public Guardian will reject LPAs that give powers which are not practicable.
In addition to your Attorney(s), other people should then be notified about the Power of Attorney. This is a safeguard to prevent Attorneys from abusing their position of trust and is a useful way of making sure other people are not surprised when Attorneys try to act for you in the future.
People who made Powers of Attorney before 2007 are likely to have made an Enduring Power of Attorney (EPA) rather than a Lasting Power of Attorney. EPAs are still valid so 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 only allows Attorneys to make decisions about property and finances. If you also want your Attorney to make decisions about your health and welfare you will need to make a separate LPA for health and welfare.
Getting specialist legal advice before making a Lasting Power of Attorney will help ensure your LPA reflects your wishes while remaining workable. The Office of Public Guardian will reject any LPA it considers unworkable.