What is a Lasting Power of Attorney (LPA) and do I need one?
A Lasting Power of Attorney is a legal document in which you appoint one or more people (your attorneys) to help you either manage your financial affairs or to make decisions about your health and welfare. There are two separate forms, one for finance and the other for health. You can choose to have either one, or you can choose to have both, and if both you can have different attorneys for the separate forms or you can choose the same ones.
There is an important distinction between the two different types: the Health and Welfare only comes into effect when you are not capable of making your own decisions while, with the Financial Affairs one, you can choose to let your attorneys help you, even though you still have mental capacity. In either case they must always act in your best interest. Furthermore, with the financial one, they must let you make all the decisions yourself, if you have capacity, and not overrule you.
A Lasting Power of Attorney allows you to plan ahead for unforeseen contingencies. Illnesses and accidents can happen to anyone at any time and at any age and having a Lasting Power of Attorney in place provides you with peace of mind as it avoids the risk of incurring the substantial cost of making a formal application to the court, as well as sparing your loved ones much distress and uncertainly. It also enables you to stipulate who is to exert that power on your behalf in these circumstances.
Most of us assume that our next-of-kin already have authority to deal with such matters, but this is not the case. Even married couples need to ensure that either of them will be able to lawfully manage the other’s affairs in the event of physical or mental incapacity.
You will, at all times, retain the legal right to make your own decisions, good or bad, about your financial affairs and health and welfare even after you have a Lasting Power of Attorney in place; so long as you retain the mental capacity to take these decisions.
You can revoke your Lasting Power of Attorney at any time, as long as you have the capacity to do so.
Who should I appoint as my attorneys?
The short answer is that you should choose people you trust implicitly and, just as important, whom you already get along with. These can be friends or relatives. An attorney’s age, life experience and location should be considered.
If you appoint more than one attorney, which is something we usually recommend, then you will need to decide on their working relationship. You can appoint them jointly, in which case both attorneys have to be in agreement when making a decision or taking action on your behalf, or jointly and severally, which enables your attorneys to allocate their joint responsibilities between themselves. Each alternative has its benefits and potential drawbacks.
If you do not have any close friends or relatives that are able or willing to act in this role, you can appoint members of this firm to act as your attorneys. We have a capable team of professionals who are very experienced in this work.
We are also experienced in acting in collaboration with lay attorneys and our hourly charge rate is always set at a competitive rate. Our professional duty is always to act in our client- donor’s best interests, come what may.
Can a Lasting Power of Attorney be changed?
Yes. So long as you retain the requisite mental capacity to make your own decisions, you can revoke your Lasting Power of Attorney and prepare a new one, if you want, at any time. The rules that determine whether an individual has the requisite mental capacity to make their own decisions are extremely well thought through and set out in statute. Disputes on capacity are usually resolved by medical experts.
It does not matter whether the Lasting Power of Attorney has been registered or not, you can still cancel it.
Can a Lasting Power of Attorney be challenged?
Here at Broomhead & Saul we can arrange in appropriate cases for medical professionals to consider the issue of mental capacity in order to try to avoid any further arguments over this issue.
You also benefit from the fact that professionally trained and qualified solicitors have overseen the preparation and execution of the documents. When people make Lasting Power of Attorney themselves, they can be more open for challenge on grounds of undue influence and lack of capacity.
What is the difference between an Enduring Power of Attorney and a Lasting Power of Attorney?
An Enduring Power of Attorney signed before 1st October 2007 remains valid. However, this will only cover your property and financial affairs. Should you wish to give authority over your health and welfare matters you will need to make a health and welfare Lasting Power of Attorney.
This article was contributed by our Michael Fitzgerald, one of our rising star specialist probate lawyers.
For more information on LPAs please click here or to book an appointment at our Taunton or Ilminster office, please contact Andrew Lewis, Sue Baker, Mel Dodds or Michael Fitzgerald.