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What is a Lasting Power of Attorney? 

A Lasting Power of Attorney (also known as an LPA) is a legal document that can be used to appoint someone else to make decisions about your own assets, health and welfare. It can also be used to allow others to have access to your assets, in case you were unable to access them yourself.

The person making the appointment under a Lasting Power of Attorney is called the ‘Donor’, whilst the people appointed are known as the ‘Attorneys’.

The extent of the authority or power given to an Attorney and the type of issues that they can deal with on behalf of the Donor will depend on the type of Lasting Power of Attorney used to appoint the Attorney and whether or not any restrictions or conditions have been imposed by the Donor when making the appointment.

Generally, there are two types of Lasting Powers of Attorney and they each deal with separate issues concerning the Donor’s: 

  1. Property and financial affairs and 

  2. Health and welfare 

Property and Financial Affairs

Attorneys appointed under this Lasting Power of Attorney will be able to make decisions about any issues relating to any of the Donor’s assets in the UK and also act on their behalf when dealing with such assets.

Unless the Donor imposes a restriction or condition in the Lasting Power of Attorney stating otherwise, an Attorney appointed under this Lasting Power of Attorney is usually able to carry out a variety of functions concerning the Donor’s assets in the UK including:

  • Gaining access to the Donor’s bank accounts, investment accounts, share accounts etc, 
  • Withdrawing funds from the Donor’s accounts and even
  • Authorising a sale or purchase of any assets owned by the Donor in the UK. 

So, having this Lasting Power of Attorney in place should therefore enable the Attorney to access any funds that the Donor may have in the Donor’s bank or investment accounts in the UK and use the same to provide for any of the Donor’s financial needs.

In the event that the Donor does not have sufficient funds to meet any expenses or costs that may arise, perhaps at a later date, an Attorney appointed under this Lasting Power of Attorney may even be able to authorise the sale of any assets, including any properties that may be owned by the Donor in the UK, in order to provide for such needs.

Some Donors prefer to allow this Lasting Power of Attorney to be used only in the event that they do not have sufficient mental capacity, whilst others prefer having the flexibility of allowing their Attorneys to act as and when required and even if the Donor still has sufficient mental capacity to deal with their own affairs. Allowing an Attorney to deal with matters on the Donor’s behalf (even if the Donor has sufficient mental capacity to deal with such matters by themselves) may provide greater flexibility in terms of the types of situations in which this Lasting Power of Attorney can be used. For instance, if the Donor was unable to visit their local bank in order to access their bank account due to mobility issues, or other issues such loss of sight or hearing, the Attorneys would be able to access the accounts on the Donor’s behalf and thereby help the Donor maintain status quo for as long as possible. 

If the Donor no longer had sufficient mental capacity and the Donor did not have a valid Lasting Power of Attorney in place, the Donor may no longer be allowed to access their own bank or investment accounts in the UK as most leading banks and financial institutions tend to restrict access to such accounts as soon as the Donor’s condition is known. In such a situation, the Donor’s loved ones may not be able to access the Donor’s funds even to provide for the Donor’s own needs and may therefore have no other alternative but to apply for a Deputyship Order from the Court of Protection (COP), so that they may be appointed as ‘Deputies’ in respect of the Donor’s Property and Financial Affairs, which will then allow them access to any funds held in the Donor’s name. 

The process of applying for a Deputyship Order can be expensive and time-consuming compared to the process and cost of creating a valid Lasting Power of Attorney and there is also the risk that the Deputyship Order may not be issued by the COP in time to meet any urgent need that the Donor may have at that point in time.   

Health and Welfare

This Lasting Power of Attorney allows the Donor to appoint the Attorneys that would help them make decisions or act on their behalf in respect of matters such as:

  • Where the Donor resides such as whether at home or at a care home   
  • How the Donor is cared for
  • Whether or not the Donor receives any life-sustaining treatment such as resuscitation and   
  • Other matters that may be relevant to the Donor’s health and welfare at that point in time.

Unlike the Attorneys appointed under a Lasting Power of Attorney that deals with the Donor’s property and financial affairs, an Attorney appointed under this Lasting Power of Attorney would only be able to make decisions about the Donor’s health and welfare or act on their behalf in relation to such matters if and when the Donor no longer has sufficient capacity to do so themselves.

In the event that the Donor did not have sufficient mental capacity and did not have a Lasting Power of Attorney in place in respect of their health and welfare, the local Social Services may be required to step in and make decisions in respect of such matters instead. If, however, the Donor’s loved ones failed to agree with any decisions made by the Social Services, they would unfortunately not have the power to override such decisions unless by way of a successful application made to the Court of Protection (COP).

As matters concerning the Donor’s health and welfare are considered to be more fundamental than those concerning the Donor’s property and financial affairs, the COP is less likely to grant a Deputyship Order in respect of such matters unless there are special circumstances that can justify such an appointment. Therefore, if a Donor no longer has sufficient mental capacity to deal with matters concerning their own health and welfare and the Donor does not have a Lasting Power of Attorney in place to cover such matters, there is a chance that the Donor’s loved ones will have no choice but to allow the local Social Services to make decisions about the Donor’s health and welfare. 

How to create a valid Lasting Powers of Attorneys and are they different from a General Power of Attorney?

There is a specific process that needs to be followed to have a valid Lasting Power of Attorney put in place and our team at Comptons will be happy to guide you through this process.

The application process involves the completion of a particular set of forms following a prescribed order before they are submitted to the Office of Public Guardian (OPG) to be registered. A fee of £82.00 will be payable to the OPG for each Lasting Power of Attorney registered.

The forms will enable the Donor to set out their own details as well as the details of their Attorneys, how and when the Attorneys may or may not act and the details of the Certificate Provider to be used in respect of each Lasting Power of Attorney. The Certificate Provider nominated in the form will help confirm that the Donor understands the implications of making the appointments seen under the relevant Lasting Power of Attorney, the Donor has sufficient mental capacity to make the appointments and has not been unduly influenced or forced to make the appointments.

Once the relevant forms have been completed, they will then need to be signed by the Donor, the Attorneys and the Certificate Provider following a certain prescribed order before they can be submitted to the OPG for registration.

The OPG will allow a period of 4 weeks to pass before they start the registration process. This is to allow anyone who wishes to object to the registration of the Lasting Power of Attorney an opportunity to make their objections known to the OPG. In the event that the OPG does not receive any objections, they will commence the registration process on the 5th week. The OPG may take a further 2 to 4 weeks to complete the registration process.

Once registered, the Lasting Power of Attorneys forms will be returned to the Donor or the applicant Solicitor and may be used by the Attorneys thereafter.

The Attorneys appointed under a Lasting Power of Attorney that deals with the Donor’s property and financial affairs may have powers similar to those appointed under a General Power of Attorney, in that they too may be able to act on the Donor’s behalf if the Donor was outside the UK at that point in time. 

Although creating a General Power of Attorney involves a less rigid process, any powers provided to an Attorney under a General Power of Attorney will come to an end in the event that the Donor no longer has sufficient mental capacity to deal with their own affairs, whereas Attorneys appointed under a Lasting Power of Attorney will enjoy the flexibility of being able to act on behalf of the Donor even if the Donor no longer had sufficient mental capacity to deal with their own affairs.

The use of both types of Powers of Attorneys will, however, come to an end upon the Donor’s death.

Who needs a Lasting Power of Attorney?

Whilst all adults living in the UK are encouraged to have both types of Lasting Power of Attorney in place, the following categories of people are encouraged to have their Lasting Powers of Attorneys in place as soon as possible. 

  • Those that that have children or elderly relatives that may depend on their income  
  • Those who own assets in the UK, whether it be properties or bank and investment accounts;
  • Those that are likely to be diagnosed with a medical condition that may mean that they may no longer able to deal with their own affairs without the assistance of another; 
  • Those who own and manage businesses in the UK should consider appointing Business Attorneys and
  • Those who are expecting to undergo surgical treatment. 
Lanka Bandara

Lanka Bandara

Associate Partner