Lasting Powers of Attorney Solicitors

An LPA is a document giving legal authority to one or more attorneys to make decisions on your behalf. The person making the LPA is known as the donor.

You can choose one or more attorneys for each type of LPA. They can be the same attorneys for both LPAs, or you can appoint different attorneys for each LPA.

An LPA can be tailored to give your attorney the specific authority that you want them to have, and you can authorise your attorneys to act independently or require them to make decisions together.

You may be happy for your attorneys to make everyday decisions individually, but for larger decisions, such as going into care or selling your property, you can require your attorneys to make the decision together, and your LPA can be drafted to stipulate this.

It is generally advisable to appoint backup attorneys in case your original choice of attorney cannot take on the role when the time comes.

An LPA must be registered before use. A property and financial affairs LPA can be used while you still have mental capacity, for example, if you will be away for a while and you need someone to deal with your affairs. A health and welfare LPA can only be used if you have lost mental capacity.

If someone loses mental capacity and does not have an LPA in place, their family members will need to apply to the Court of Protection for a deputyship order if they wish to deal with financial or healthcare matters on their behalf.

This is a longer and more complex process than putting an LPA in place. The court will take several months to process a deputyship application, and in the meantime, a family will not be able to deal with matters for the individual. This can cause difficulties.

The deputyship process is also more expensive, and a deputyship order involves more ongoing supervision than an LPA.

LPAs and Wills are both essential parts of planning for the future, and it is always advisable to have both of these in place, whatever your age or circumstances.

While it is possible to put an LPA in place without a solicitor, it is an important document, and mistakes can have major implications for the future. Specialist LPA solicitors will make sure that your LPAs give only the authority you want to give, that the document is correctly drafted and unambiguous, and that the notification and registration processes are properly handled.

If you ask us to draft your LPA, we will go through your circumstances with you and ensure that the document exactly suits your needs. We can also discuss choosing the right attorney and, if you have more than one attorney, whether you want to allow them to act separately.

Where mental capacity is an issue, we will make sure that the professional opinion of a mental capacity expert is obtained.

An LPA attorney has a duty to act in the best interests of the person who appointed them at all times.

They must act within the authority set out in the LPA and not exceed this.

They should deal with your affairs with honesty and integrity and keep records of all financial transactions and other decisions. Where medical and welfare decisions are made, notes should be kept of any discussions with the donor and other relevant parties that led to the decision.

Attorneys must comply with the key principles of the Mental Capacity Act 2005, as follows:

The donor:

• Is presumed to have capacity unless it is proved otherwise
• Should be supported to make their own decisions wherever possible, meaning they should be involved in the decision, even if they cannot make it themselves
• Has the right to make a decision even if the attorney does not agree
• Any action taken by the attorney must be in the best interests of the individual
• The attorney must make the decision which least restricts the donor’s rights and freedoms

Being an attorney under an LPA is a responsible role and can be time-consuming. You should choose someone who is likely to have the ability to help you, should this ever be necessary, bearing in mind it could be long into the future.

If you do not have anyone suitable, you can appoint a professional. This is usually an experienced LPA solicitor, who will make a charge for their services.

If an LPA has been registered with the Office of the Public Guardian, a deed of revocation needs to be executed and sent to them to revoke the document. Your attorneys should also be notified in writing of the revocation. This can only be done while the donor has mental capacity.

It is not possible to change an LPA once it has been made, except in the case of the removal of an attorney.

If you wish to make changes to an LPA, it is usually preferable to have a new LPA made and revoke the previous one.