Power of Attorney Solicitors

Lasting Power of Attorney Solicitors

A Lasting Power of Attorney is a legal document that allows you to appoint one or more persons, known as attorneys, to manage your affairs and/or make decisions about your personal welfare if you are unable to do so. You can specify this come into effect if you should ever begin to lose capacity.

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Why make a Lasting Power of Attorney?

Our Powers of Attorney Solicitors can advise you on making a Lasting Power of Attorney, which will mean you can provide in advance for the possibility that you may one day become incapable of handling your financial affairs and property or making decisions about your own personal welfare. In these circumstances, it is important that your best interests are protected, and your affairs are managed with efficiency and integrity. You may, therefore, wish to appoint in advance persons whom you trust to act on your behalf if this should ever become necessary. It is necessary to make a Lasting Power of Attorney before there is a need for it to be used because you must have sufficient capacity to understand the implications of the document when it is created. The Lasting Power of Attorney should be registered at court to bring it into force and safeguard your best interests.

A Lasting Power of Attorney can be very flexible:

  • You can appoint one or more attorneys, provided they are over 18, and a successor or substitute attorney.
  • You can specify whether your attorneys must act together or can act separately.
  • You can authorise your attorneys to take whatever actions you wish. For example, you may wish them to have the authority to look after your financial matters and property. Following a change in the law, you can now empower your attorneys to make decisions about your welfare, such as giving or refusing consent to medical treatment if you cannot do so yourself.
  • Restrictions can be included to limit the scope of your attorneys’ powers if you feel this is appropriate.
  • You can revoke the Lasting Power of Attorney while mentally capable.

What is the Powers of Attorney Act 2023?

The Powers of Attorney Act 2023 aims to modernise and streamline the process of creating and registering Lasting Powers of Attorney (LPA), making it more accessible, faster, and secure. Key changes and practices introduced by the Act include:

Digitisation of the LPA Process

The act allows for an LPA to be made digitally, which represents a significant shift from the previously paper-based process. This change aims to speed up the registration time by detecting errors early and allowing for online corrections​.

Enhanced Security

The act introduces measures to prevent fraud by improving checks on the identity of those applying for an LPA. This is crucial for safeguarding against abuse and ensuring that the power of attorney is granted under the correct conditions.

Improved Accessibility

By moving towards a digital process, the act makes it easier for individuals to create and register LPAs. This is aim is to make the power of attorney more accessible to a wider audience.

Objecting to an LPA

The new legislation expands the ability for a larger group of interested persons to object to the appointment of an attorney. This is an important safeguard that can help prevent abuse or fraud in the granting of LPAs.

Power of Attorney Solicitors – What to expect from Osbornes Law

Our service includes explaining and preparing the lasting power of attorney document to reflect your wishes and registering the document as court. We will explain the nature and effect of a Lasting Power of Attorney and draft a document reflecting your personal wishes. Once you have approved the document, we will arrange for it to be registered at court.

We can also advise on Lasting Powers of Attorney disputes.

Common myths about Lasting Powers of Attorney

Lasting Powers of Attorney are only for old people

No, it is a mistake to think that LPAs are only for the elderly as disaster can strike at any time.

Like wills, people often do not think about LPAs until they absolutely have to. As a result, the most common problem we encounter when preparing LPAs is that the donor has left it until they are very elderly or have a condition which is already affecting their mental capacity. In order to prepare an LPA the donor must understand what an LPA is and the nature of the decision they are making i.e. whether or not to make an LPA, this includes understanding the relevant information, being able to retain that information, to use and weigh up that information in making the decision and communicating the decision. If they do not have the necessary capacity then they cannot prepare an LPA.

Having an LPA allows you to grant that decision-making legal power to people chosen by you and it is for that reason it is so important. It is also worth noting that once an LPA is registered there is no time limit on its use and so once prepared LPAs are in place just in case anything should happen.

I would encourage anyone who is thinking about preparing a will to also consider LPAs and how they might want decisions to be made if they are unable to.  As with wills, there is no reason to put off preparing LPAs. 

My executor can make decisions for me if I lose capacity

Although almost everyone does now know what a will is there is often some confusion about the differences between wills and LPAs, indeed some people think they are one and the same.

I’m often asked when preparing a will what decisions the executors will be able to make during their lifetime or indeed whether an attorney is the same as an executor. It is important to be clear that a will is used and referred to after death, whilst an LPA is only valid during a lifetime. LPAs and wills are completely separate documents with no significant overlap, who is appointed as your attorney has no impact on who deals with your estate when you’ve passed away.

This is a straightforward point but I hate to think that people are not making LPAs because they already have a will in place and are under the misapprehension that they are one and the same. 

LPAs are only helpful if I’ve lost capacity

The focus when discussing LPAs is generally what will happen when the client loses their capacity to make decisions themselves. However, it is important to note that the donor can give their attorneys authority to make decisions about their property and financial affairs as soon as the LPA is registered, albeit the attorneys can only act with the donor’s consent whilst the donor has the capacity to make the decision themselves. The same choice is not afforded in relation to health and welfare LPAs, the donor continues to make these decisions until he/she can no longer do so.

Giving your attorneys the ability to make decisions straight away can be very useful. I have clients, for example, with mobility or hearing issues who have no capacity problems but having an attorney who can go to the bank to withdraw cash on their behalf, or liaise with utility companies over the phone is very helpful. In recent months, and for the foreseeable future, those who are vulnerable and so minimising interaction with others, now known as “shielding”, may encounter difficulties in actioning their decisions, particularly if they do not have access to the internet. Having someone appointed as an attorney for property and financial affairs could prove extremely useful for those people

An LPA is not only useful for those who have health conditions, be they mental or physical. With the donor’s consent, the attorney could carry out the donor’s wishes simply because they are better able to, for example, if the donor is abroad but needs something arranged back in England.

Whilst LPAs will always be associated with loss of capacity as it is their ability to continue despite a loss of capacity which marks them apart from other types of power of attorney, the other scenarios in which a property and financial affairs LPA can be used further demonstrate the importance of having LPAs in place. 

The next of kin always gets the final say

It is a common misconception that LPAs are not needed because, for example, the medical team or the bank will simply take instructions from your next of kin when you can no longer make decisions for yourself. This is not the case, the next of kin does not have any legal right or responsibility to make decisions.

In a medical situation where you do not have the capacity to make decisions yourself about, for example, your treatment and care, your next of kin will not be asked to make decisions on your behalf but rather kept informed about your condition and treatment. It is the relevant professional who will make decisions based on what they believe to be in your best interests, often with input from those close to you. This can leave your loved ones feeling frustrated that the final decision rests with the professional involved, particularly if their views are not acted upon or given weight.

Another common problem arises with banks and the payment of bills. If you have bills which need paying but you are unable to give the bank instructions due to a loss of capacity, they will not simply take instructions from your next of kin. This can leave those who care for you in a very difficult position where bills and, in particular, expensive care fees need paying but due to there being no attorney in place, these payments cannot be made from your own funds. This can put additional strain on those close to you and add additional stress at what would no doubt already be a very difficult time.

Your LPAs need not appoint your next of kin as your attorney, your attorneys can be anyone you wish. Your attorneys should be those who know you best and who you trust to make the decisions you would make if you were able to.

You can't make an LPA if you have dementia

We have an extensive blog post on this topic here.

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