A lasting power of attorney (LPA) gives you a voice when yours can no longer be heard. Without an LPA, your finances and your health and welfare are left in the hands of the government and medical professionals who decide your future in accordance with legislation. Medical professionals will move you to where they believe you can get the best medical help and your finances and property are left open to pay for your care.
An LPA is a legal document that allows those you have chosen as attorney to act on your behalf if anything happens to you that leaves you unable to carry out various responsibilities, but the granted authority comes with its own duties and responsibilities so you must be completely comfortable and satisfied that the attorney you have appointed will act in your best interests. As long as you still have capacity, you have the power to revoke or change your LPA at any time. Appointing an attorney does not mean they can immediately start accessing your bank accounts and making changes — this only comes when you no longer have capacity, or you have given your consent.
There are two different types of LPA. A property and finance LPA will give your chosen attorney the ability to access and manage your property and financial affairs if you lose the ability to do so. A health and welfare LPA will give your chosen attorney the power to command matters concerning your health and welfare. Having both LPAs in place to compliment each other will allow your attorney to have an overall say in what happens to you and your estate.
Can the terms of an LPA be changed or cancelled?
If any changes need to be made to an LPA, you will need to revoke your current one and replace it with a new one. Some of the reasons that donors wish to change the terms of an LPA include if they no longer want someone to be their attorney or if they wish to add one or more extra attorneys. They may also have stated that they require all the attorneys to agree before they enact any wishes, but then they changed their mind, deciding that they need to agree on certain matters only.
When does a person lack ‘mental capacity’?
The Mental Capacity Act 2005 covers people in England and Wales who can’t make some or all decisions for themselves. The ability to make and understand a decision when it needs to be made is called ‘mental capacity’.
How many attorneys do I need?
We would normally advise that at least two attorneys are in place to ensure they make the best decisions for you in the future. It also means the attorneys can divide up the responsibilities – they may have a number of tasks, such as paperwork, medical arrangements and looking after your financial matters. Having more than one attorney will provide them all with a support network at a time that could be distressing for them.
I already have an advance decision (‘living will’). What should I do?
Your Living Will is an expression of your wishes about what you would like to happen in a given situation, such as if you become terminally ill. Make sure that your attorney knows where your living will is stored and make sure they have access to it. The advance directive has been written for them as well as medical professionals, to give them guidance on their wishes.
Can my attorney do whatever they like?
No, they will be obliged to act according to the wishes that you have expressed. It is also preferable to have more than one attorney in this situation, as a safeguard that they will act in accordance with your wishes.
Who can be my certificate provider?
The certificate provider must be a professional individual who has known you for more than two years.
I have an adult child with learning difficulties – can I act as their attorney?
Assuming that your child has mental capacity and wants you to act on his behalf if anything was to happen to him then, yes, they can appoint you as their attorney, but this must be their decision – you cannot simply apply to be their attorney without their consent.
I have two children and two stepchildren – can they all be my attorneys and will some have more power than others?
All the children can be your attorneys. Regarding a hierarchy, when you are writing your LPA our adviser will ask you how you wish your appointed attorneys to act. To help you make the best decision for you, our adviser will then explain to you how the process works and the different consequences of what you put in your LPA.
What happens if I lose the ability to make decisions but no LPA is in place?
If you lose capacity and don’t have an attorney in place then you will be in the hands of the government and medical professionals, who will work to a set code of conduct to ensure you are cared for. Your family and loved ones will have no legal say in how you are looked after or where you can be moved for treatment. Your estate will be charged for the cost of your care.
What happens if my attorney dies before me?
You must make a new LPA and select a new attorney, but you can only do this if you still have capacity. If you have lost capacity and your attorney dies then you will no longer be allowed to appoint a new attorney and your LPA becomes void. This is why it is important to appoint a reserve attorney, in case your attorney dies before you or chooses to step down from the position.
I am an attorney and I no longer want the responsibility.
You can choose to stop acting as an attorney at any time. If the LPA has been registered then you will need to complete the short form and sending this off to the Office of the Public Guardian. Your LR Estate Planning adviser can give guidance on this process.
Can a doctor overrule my attorney’s decisions?
A doctor can overrule your attorney’s decisions if they feel that the attorney is not acting in the best interest of the donor. Often the reason for a doctor to overrule an attorney is if the attorney hasn’t been given the right to decide in this particular instance or if the donor has left a living will/advance decoration and the attorney is clearly going against the wishes of the donor.
Can my attorney influence my executor after my death?
An attorney has no power or influence over the executor. The attorney is someone who has been appointed when you are alive to act on your behalf. The executor handles the estate’s affairs after your death. You can appoint the same person to both roles if you wish.
Must the donor be present when the certificate issuer witnesses and certifies the LPA?
There is no requirement for the donor to be present when the certificate issuer witnesses and certifies the LPA but some certificate issuers may prefer the donor to be there – you should check with the certificate issuer beforehand.
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