Should I Sign Lasting Power of Attorney?
The repercussions of appointing an ‘attorney’ to act on your behalf if you become incapacitated are obviously far reaching.
For example, had you signed such a legal document in 2020, the appointee that you selected could still be the primary decision maker for you, your estate and everything relating to your finances in 2040. Lost mental capacity is rarely reversed, but that does not mean a donor would have to permanently lose their rights.
If following a hearing at the court of protection, it was determined that you did not have the mental capacity to make further decisions for yourself, it would be very difficult to take this power away from the person you had nominated.
A lasting power of attorney replaced ‘Enduring Power of Attorney’ on the first of October 2007. Enduring Power of Attorney’s signed before then would still be valid until cancelled by the donor (the person signing over power of attorney).
Lasting power of attorney is a much more flexible option, as you can now separately choose an ‘LPA’ designed specifically to make decisions in respect of your health and welfare or property and financial affairs. You can even have two separate Attorneys to handle different areas for you.
Attorneys or replacement attorneys can continue to manage each area – so you can change the nominated attorney for property issues, whilst maintaining a different attorney for health related concerns.
The difference between Lasting Power of Attorney and Enduring Power of Attorney
It’s important to note that unlike Enduring Power of Attorney (EPA), an LPA requires that the donor is of sound mind, and therefore has the required mental capacity to understand their decision, and the consequences for them in the authority that they are assigning to an Attorney.
The Office of the Public Guardian (OPG) is there to help people to maintain control on decisions about personal health and finance and will often make important decisions for those who cannot decide for themselves.
When required, we liaise with the office of the public guardian and other regulatory bodies on behalf of clients, and we are on hand to provide support to donors or attorneys, who plan to petition these bodies regarding power of attorney.
A range of organisations act as ‘certificate provider’ – and it is their legal responsibility to act as the gatekeeper that ensures all parties are informed and protected.
It is obviously required that the LPA donor is making their choice based on correct information and which is not subject to any form of pressure or fraud. The certificate provider is required to complete a statement that affirms that they have discussed the implications of the LPA with both the donor and the proposed attorney. They must also confirm that they that they are satisfied that all parties understand these implications and are under no undue pressure to agree to the terms.
We cannot expect attorneys to make decisions if they haven’t been fully briefed on the scope of their responsibilities, and the certificate provider helps to ensure that this is the case.
The final decision
We believe that you should consider the following when deciding what to do:
- Why am I looking into this?
If you have received a diagnosis – or have other reason to believe that you will need help with your affairs, we recommend that you tackle this issue as a priority. If, however, you’re considering this as a precautionary measure (perhaps due to age or personal risk of injury), then we’d recommend that you have a discussion with your family and make a decision together. Again, you MUST NOT be under any undue influence in making your final decision – or the LPA is likely to be invalidated.
- How will my affairs be managed if I were to lose mental capacity and had not signed an LPA?
Would this become a sudden burden to a loved one – or fall into the hands of someone who might not make the best choices? Just as with a will, in the absence of a proper instruction from you, the duty will fall to the nearest family member by default. If this is a concern, we would suggest you consider nominating a trusted person, in whom you have full confidence.
- Would the person I nominate to make decisions in respect of my health care be the best person to handle financial affairs and vice-versa?
If not, you can choose only a Health and Welfare LPA, and leave financial affairs to be decided by family or next of kin. In this instance, we would still recommend that you nominate someone specifically for each individual duty, so ensure that there is no confusion when the time comes.
- Attorney powers have limits
There are restrictions in place to control what an attorney can and cannot do. An attorney cannot restrict your freedom just because they have a Health and Welfare LPA. Similarly, your attorney will not be allowed to make large financial gifts to people or charge fees that are not approved within the Lasting Power of Attorney Document. This is an area that you should discuss with us when preparing to sign an LPA.
An attorney must over 18 years of age, and be of sound mind (in that they have the mental capacity to be appointed).
For more information on your ability to make, register or end a lasting power of attorney, take a look at the UK Government website.
We’re here to help
At Van Eaton Solicitors, we support clients in England and Wales with professional legal advice when entering into any form of power of attorney agreement.
Principal, Van Eaton Solicitors.
Jo Walia is an experienced Civil Litigation, Wills & Probate specialist that serves clients across England and Wales. You can request a no-obligation consultation by getting in touch using the form below.