Lasting Powers of Attorney and Who to Appoint

A Lasting Power of Attorney is the legal document required to give someone else authority to make decisions on your behalf should there come a time when you cannot make these decisions for yourself because you have lost mental capacity.

There are two types of Lasting Power of Attorney:

• Property & Financial Affairs
• Health & Welfare

You can have either or both types of Lasting Power of Attorney.

What is a Property and Affairs Lasting Powers of Attorney?

A Lasting Power of Attorney for Property and Financial Affairs is the legal document required to give authority to another person(s) to make decisions on your behalf about your property and finances.

You, as the donor, grant the Lasting Power of Attorney in favour of the Attorney(s) to enable them to make decisions about your property and finances, if there comes a time where you lack the capacity to make those decisions yourself.

A Property & Affairs Lasting Power of Attorney can also be used when you do have mental capacity, with your consent – for example, if you were in hospital or housebound and needed your Attorney to deal with something at the bank on your behalf.

What is a Health and Welfare Lasting Powers of Attorney?

A Lasting Power of Attorney for Health and Welfare is the legal document required to give authority to another person(s) to make decisions on your behalf about your health and welfare.

A Health & Welfare Lasting Power of Attorney can only be used by your Attorneys to make decisions on your behalf if you have lost mental capacity to make them for yourself.

The Health & Welfare Lasting Power of Attorney allows you to decide who should make decisions about any life sustaining treatment you might need, if you can’t decide for yourself.

Who should I appoint as an Attorney?

It is important to think carefully about who you would like your Attorney(s) to be as they will have authority to manage and make decisions in relation to your finances and health. It is important that they are trustworthy, honest and capable of acting with integrity – though they don’t actually need any specialist skills to carry out the role. It can be anyone who is aged 18 or over and who has mental capacity, is also important that they are not bankrupt.

If you are not able to identify family or friends who could act as your Attorney, then you can appoint professionals such as solicitors or accountants, but they will likely charge for their services.

You should also consider practical issues such as whether it would be better to have an attorney who is geographically close to you, though this might be less relevant, for example for an Lasting Power of Attorney for Property & Affairs, if you deal with all of your finances online. You should also consider the time, skills and expertise that each attorney has in relation to what they may need to do. If you choose to appoint professional attorneys you will need to pay them for acting as attorney, but you can also pay other attorneys if you wish.

How many Attorneys can I have?

You can appoint up to four Attorneys, and up to four Replacement Attorneys. Replacement Attorneys would only act should any of the original Attorneys die or be unable or unwilling to act.

However, having four Attorneys is quite a lot, so you may wish to consider having two Primary Attorneys and two Replacement Attorneys, to keep the logistics simple.

How will my Attorneys Act?

Attorneys can act alone (if there is only one), jointly or jointly and severally. It is best to seek legal advice on this point as it could affect the use of the Lasting Power of Attorney itself.

Preferences and Instructions

The Lasting Power of Attorney documents allow you to include your wishes and/or instructions as to how the Attorneys should make decisions for you and what you’d like them to take into account when making a decision for you. Again, the wording of these wishes and instructions is important, so you should seek legal advice.

The Office of the Public Guardian

The Office of the Public Guardian is the administrative arm of the Court of Protection who supervise the creation and use of Lasting Powers of Attorney.

Once a Lasting Power of Attorney has been prepared it must be registered with the Office of the Public Guardian before it can be used.

When should I make a Lasting Power of Attorney?

Lasting Powers of Attorney can only be made when someone has mental capacity. Therefore, the sooner they can be prepared, the better.

If you do not prepare Lasting Powers of Attorney and then go on to lose mental capacity your family, friends or social services may need to make an application to the Court of Protection for the appointment of a Deputy to make decisions on your behalf – this is both costly and time consuming.

For further information regarding the above or if you would like to discuss a Wills & Probate related query with one of the team, please call us on 0800 011 6666 or e-mail the team at legal@timms-law.com.