Lasting power of attorneys (LPA) can be particularly sensitive for the people involved and need to be handled carefully. An LPA is a legal document drawn up by you while you have full mental capacity. You, the donor, appoint a capable adult known as an attorney, to have legal power making decisions on your behalf in case something should happen in the future that prevents you from making your own decisions.
Family members, friends, spouses, partners and civil partners are all examples of individuals who can be chosen. Alternatively, professionals such as a solicitor, doctor or social worker can also be appointed.
Responsibility and capability are two key characteristics that the person you choose will need; Would you want a daughter who is terrible at managing her own money, or a son who has a gambling problem being responsible for managing your finances if you couldn’t do it yourself?
Would you want your husband with opposing medical beliefs and values or your sister who is unable to make decisions at the best of times making decisions about your health and care if you couldn’t do it yourself?
There is no automatic right for a spouse, children, siblings etc to make decisions for you if you can’t. If you want to select the people who will help you in the event that you can’t make decisions yourself you MUST make Lasting Power of Attorneys (LPAs). These documents enable you to control who will help you if you lose your mental capacity.
Making decisions on your behalf
Your attorney will have responsibility over the following:
• Acting in your best interest;
• Keeping accurate records of dealings/transaction undertaken on your behalf;
• Acting for you with the greatest good faith and avoiding situations where there is a conflict of interest; and
• Keeping your property and finances separate from their own.
A donor can create a Lasting Power of Attorneys in either or both of the below areas of their life to have decisions made for them by an attorney:
1. Property and Financial Affairs
This LPA gives you more control over what happens to you, for example, in the event of an accident or illness that makes you unable to make a decision at that time, you have someone in place that can do that for you. The decisions will be made over your finances, property and investments.
2. Health and Welfare
This LPA gives an attorney the power to make decisions around areas including where you live, your medical care, movement to a care home and life-sustaining treatments.
A donor setting up a financial LPA can request regular details of how much is spent and their amount of income at that time, which offers an extra layer of protection. If a donor loses mental capacity, these details can be sent to a solicitor or family member. The attorney must also keep accounts and make sure that their money is kept separate from the money belonging to the donor.
There is no requirement for you to have the same attorneys for both areas and you should consider the strengths and weaknesses of those you are considering in respect of their ability to perform the roles.
Validity
A Lasting Power of Attorneys is only valid if the donor has the mental capacity to set it up, and was not put under any pressure or duress to create it. It can only be used when the donor is unable to make their own decisions.
The LPA must be signed by a certificate provider who can confirm that the donor understands the contents and implications of the LPA and that the donor has made it of their own choosing to do so. They must be someone known well to the donor or a professional person, such as a solicitor, social worker or doctor.
When officially registered by the Office of the Public Guardian, the attorney can then act on behalf of and in the best interests of the donor. Banks and other financial institutions have a legal obligation to honour an LPA and deal with the attorney for someone else’s account.
Our highly specialised team here at Gorvins can help you make Lasting Powers of Attorney and discuss all the options available to you, helping you to make the best decision and plan for your specific circumstances.
You can call us on 0161 930 5151, email actonit@gorvins.com or fill in the online contact form and we will quickly get back in touch.