Lasting Power of Attorney Solicitors

An LPA is a legal document where a person (the Donor) appoints a person or persons (the Attorneys) to assist with decision-making during their lifetime. The Donor must have mental capacity to grant an LPA at the time of making it.

For LPAs there is one to cover property and financial affairs such as dealing with your house and bank accounts and another one to cover health and welfare decisions which includes where you live and what medical treatment you will or will not receive. You can make just one type, but most people tend to make both at the same time.

There are other types of Powers of Attorney as well. Enduring Powers of Attorney (EPA) which can no longer be made and were replaced by LPAS on 1st October 2007 but they can still be used if validly executed; Specific or General Powers of Attorney which tend to be more short-term documents (usually a year) and require the Donor to retain mental capacity at the time of use.

Enduring Powers of Attorney (EPA) were replaced by LPAs on 1st October 2007 but they can still be used if validly executed. EPAs only deal with the property and financial affairs of the Donor whereas LPAs can be for both property, financial affairs and health and welfare. If you have an EPA and are happy with whom you have appointed but would like to appoint attorneys to deal with your health and welfare, you can make an LPA to cover just your health and welfare decisions.

The other main difference is that an LPA must be registered for it to be valid but EPAs only need to be registered if the Attorneys have reason to believe that the Donor is losing mental capacity and is unable to manage their financial affairs on a day-to-day basis.

Technically you do not need a solicitor to make an LPA however, we would strongly advise that you seek guidance on the best way to structure your LPAs. There have been many incidents where the wrong person has been appointed and there has been financial abuse which has required intervention by solicitors of the court which is costly or the wrong type of authority given which has caused problems as the LPA cannot be used in some circumstances. The court is also very strict on the signing of LPAs and therefore it is possible for them to be rejected on multiple occasions which can be problematic if the Donor then loses mental capacity.

LPAs only deal with decision-making whilst the Donor is alive and incapable of making decisions themselves. Once the Donor dies, the power comes to an end and the personal representatives of the estate will take over the administration of the estate. If you do not have a Will, the rules of intestacy will apply so you may have family members whom you do not wish to deal with your estate in charge of your assets whereas making a Will allows you to appoint your preferred executor.

If a person loses mental capacity and has not put into place a valid LPA, someone will need to make an application to the Court of Protection for a Deputyship Order. A Deputy is similar to the role of the Attorney but the appointment will need to be made by the Court of Protection.

This means that they will need full disclosure of the person’s finances to include, including income, expenditure and current assets. They will also need to complete checks on the intended Deputy.

The Court of Protection will also usually only appoint one Deputy whereas, in a Power of Attorney, more than one can be appointed and in different a variety of ways to suit the Donor. This process can take 2-3 times longer and costs 2-3 times more than making an LPA.