Home / News and Insight / Legal News / Lasting Power of Attorney – things to consider

Lasting Power of Attorney – things to consider

March 7, 2016

Lasting Power of Attorney - what we all need to know

It's sad but true - with our population ageing fast and more people diagnosed with debilitating diseases like Alzheimer's, an increasing number of us will need to think about appointing someone to oversee our affairs in the future. Or we may be asked to carry out that role on behalf of a loved one.

A Lasting Power of Attorney (LPA) - allows you to nominate a friend or family member to manage your personal and financial affairs in the event you lose the ability to do so - and a record number, almost 400,000 last year, are now being registered annually.

But worryingly, complaints about the conduct of those appointed to act as an LPA are on the up too, the majority instigated by concerned relatives or friends alleging financial abuse.

More so than ever before, it's vital to have the right advice and relevant information to hand.

Think you might need an LPA in the future?

It is crucial to carefully consider who you appoint - trust is vital as you may ultimately be giving them the legal authority to make decisions on your behalf if you lose capacity.

There are two types of LPA:

A Property and Financial Affairs LPA can be used, with your permission, as soon as it is registered. It gives your attorney the power to make decisions about things like selling your home, paying the mortgage and bills and investing money.
A Health and Welfare LPA can only be used when you are unable to make decisions for yourself. It gives your attorney the power to act on your behalf about things including deciding where you should live, your medical care, your daily routine, who you should have contact with and even your dietary requirements. It can extend to making decisions about life sustaining treatment but only if you wish it to.

Try to avoid problems and possible upset in your wider family by explaining why you have chosen a particular person to be your attorney well in advance of you actually needing them.

It can also be a good idea to arrange, for example, for your attorney to circulate bank statements regularly amongst your family so it is clear to everyone exactly what is going on with your finances.

You may also wish to consider appointing more than one attorney in case one is unable to act for any reason.

Take time to think what instructions and preferences you wish to put in this important document.

Asked to be an attorney? Making sure you get it right

Being an attorney for a family member or friend could mean making difficult decisions about that person's finances and health and welfare, either alone or with other appointed attorneys. It can be a lot to take on so think carefully about whether you are willing and able to do this if the need arises.

If the answer is yes, make sure you are fully aware of your role and responsibilities and what you can and can't do.

Confusion and ignorance are the main reasons attorneys inadvertently make mistakes. So it's important to be up to date:

Check whenever possible what the person involved (known as the donor) actually wants - it is your legal responsibility to act in their best interests and take reasonable care when making decisions on their behalf;
Keep accounts and the donor's money and property separate from your own;
Be aware of the rules on making 'reasonable' gifts to other people on the donor's behalf - usually restricted to family members on special occasions, for example birthdays and weddings;
Keep up to date with relevant guidance and any directions from the Court of Protection;
Never take advantage of your position or delegate without permission and always act in good faith and in confidence.

Out of the blue problems - when there is no LPA in place

Sometimes, problems arise unexpectedly - perhaps through the sudden onset of an illness like a stroke or dementia - without enough time for an attorney to be appointed beforehand.

When this happens, a deputy can be appointed by the Court of Protection to be legally responsible for that person. This is usually a friend or family member but can be picked from a special team of professional deputies by the Court if no-one else is willing or able to step in.

Deputy checklist - what you need to know:

A deputy must be over 18;
A court hearing is not normally required, provided there is no objection;
The proposed deputy fills in a set of application forms and a suitable practitioner, for example the patient's doctor, completes a medical form on behalf of the incapacitated person;
The powers given depend on the person's needs. If a decision is complex or difficult, the Court of Protection will recommend that the deputy takes legal advice;
You can employ a professional adviser to help you with the application and with your duties as a deputy (once appointed).