Power of attorney is a legal arrangement that allows you to give another person authority to make certain decisions or act on your behalf.
The person giving the authority is known as the donor, while the person appointed to act for them is known as the attorney.
There are different forms of power of attorney, but when planning for the future, a Lasting Power of Attorney (LPA) is particularly important. It allows you to choose people you trust to help make decisions for you, including if you are no longer able to make those decisions yourself.
At John Fowlers, we help individuals and families put Lasting Powers of Attorney in place so there is a clear plan for who can manage important financial, property, health or care decisions if circumstances change.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that allows you to appoint one or more people to act as your attorneys.
You must be aged 18 or over and have the mental capacity to make the LPA when it is created.
An LPA does not necessarily mean handing over control of your affairs immediately. Instead, it allows you to decide in advance who you trust to support you and what authority they should have.
This can become particularly valuable if an accident, illness, stroke or a condition such as dementia affects your ability to make decisions in the future.
What Are the Two Types of Lasting Power of Attorney?
There are two types of Lasting Power of Attorney in England and Wales. You can make either one or both depending on your circumstances.
Property and Financial Affairs Lasting Power of Attorney
A Property and Financial Affairs LPA covers decisions relating to your money and property.
Depending on the authority you give them, your attorney may be able to:
- Manage bank or building society accounts
- Pay bills
- Collect benefits or a pension
- Manage investments
- Deal with property
Once registered, a Property and Financial Affairs LPA can potentially be used while you still have mental capacity, provided you have given your attorney permission to do so.
This can be useful if you remain able to make your own decisions but would like someone you trust to help manage certain practical matters.
Health and Welfare Lasting Power of Attorney
A Health and Welfare LPA covers decisions about your personal wellbeing. This could include your medical care, daily routine, where you live and the care you receive.
Unlike a Property and Financial Affairs LPA, your Health and Welfare attorney can only make decisions for you when you are unable to make the relevant decision yourself.
You can also choose whether your attorneys have authority to make decisions about life-sustaining treatment.
Why Have a Lasting Power of Attorney?
One of the biggest benefits of making a Lasting Power of Attorney is that you decide who you trust to make important decisions for you.
It can be tempting to think of an LPA as something only needed in later life. In reality, circumstances can change unexpectedly at any age.
An accident, serious illness or medical condition could affect your ability to deal with your finances or make decisions about your own care. Making an LPA while you are fit and able gives you the opportunity to decide in advance who you would want to help.
It can also encourage useful conversations with your family about your preferences and what you would want to happen if they ever needed to make decisions on your behalf.
This can be particularly important following a diagnosis such as dementia. An LPA must be created while the donor has the required mental capacity, so planning ahead can avoid leaving important decisions until it is too late.
Without an appropriate LPA in place, family members do not automatically gain the same legal authority to manage your affairs if you lose capacity.
Depending on the circumstances, somebody may instead need to apply to the Court of Protection for authority to make certain decisions.
Making an LPA can therefore provide greater certainty for both you and the people closest to you.
Who Can You Choose as Your Attorney?
Your attorney must be aged 18 or over. They could be your spouse or partner, another family member, a friend or a professional such as a solicitor.
You can appoint more than one attorney.
When choosing somebody, consider whether you trust them to act in your interests, whether they understand your wishes and whether they are comfortable taking on the responsibility.
If you appoint multiple attorneys, you can also decide how they make decisions. Depending on how the LPA is prepared, they may make decisions together, independently or use a combination of both approaches for different matters.
What Does It Mean to Be Given Power of Attorney?
Being given power of attorney means taking on responsibility for helping somebody make decisions or, where appropriate, making decisions on their behalf.
Attorneys must act in the donor's best interests and follow any instructions contained within the LPA.
Where possible, they should also support the donor to make their own decisions rather than simply taking control.
An attorney's powers are not unlimited, which is why both choosing the right attorney and understanding the responsibilities involved are important.
How Do You Set Up a Lasting Power of Attorney?
The first step is deciding whether you need a Property and Financial Affairs LPA, a Health and Welfare LPA or both.
You will then need to choose your attorney or attorneys and complete the appropriate documentation.
A certificate provider must also confirm that you understand the LPA and are not being placed under pressure to make it.
The LPA must then be registered with the Office of the Public Guardian before it can be used.
The current registration fee is £92 for each LPA, although reductions or exemptions may be available in some circumstances.
Registration currently takes around 8 to 10 weeks where there are no problems with the application.
You can make an LPA yourself, but some people choose to use a solicitor to ensure the document accurately reflects their wishes and is completed correctly.
At John Fowlers, our team can explain your options and help prepare and register your Lasting Powers of Attorney.
Common Questions About Power of Attorney
How Long Does a Power of Attorney Last?
A Lasting Power of Attorney does not generally have a fixed expiry date. It can continue for as long as it remains legally valid and is required.
An LPA automatically comes to an end when the donor dies. Responsibility for dealing with their estate then passes to their executors or personal representatives.
There are also other circumstances that can affect an LPA or an individual attorney's appointment.
Am I Too Young to Make a Lasting Power of Attorney?
You do not need to wait until later life to make an LPA.
You can make one from the age of 18, provided you have the mental capacity to do so.
For many people, a Lasting Power of Attorney is simply another part of planning ahead, alongside arrangements such as making a Will.
Can a Power of Attorney Be Challenged?
Yes, concerns about an attorney or the way an LPA is being used can be raised.
This may happen where there are concerns that an attorney is acting outside their authority, failing to act in the donor's best interests or misusing their position.
The Office of the Public Guardian can investigate concerns about attorneys, while the Court of Protection also has powers relating to Lasting Powers of Attorney.
Who Can Override a Power of Attorney in the UK?
Having power of attorney does not give someone unlimited authority.
Attorneys must act within the powers granted to them and comply with their legal responsibilities.
Where a serious disagreement or concern arises, the Court of Protection can become involved and has powers relating to both the decisions being made and the appointment of attorneys.
Can a Power of Attorney Change a Will?
An attorney cannot simply use a Lasting Power of Attorney to change the donor's Will.
If somebody no longer has the mental capacity to make or change their own Will, an application can potentially be made to the Court of Protection for a statutory Will.
If you are considering your wider estate planning, our team can also help with making or updating a Will.
Can Two Siblings Have Power of Attorney?
Yes. More than one attorney can be appointed, meaning two siblings could both have power of attorney.
What is important is deciding how you want them to make decisions and making this clear when the LPA is prepared.
This could mean requiring them to make certain decisions together or allowing them to act independently.
How Much Does a Solicitor Charge for Power of Attorney?
The amount a solicitor charges for preparing a Lasting Power of Attorney can vary depending on your circumstances, whether you are making one or both types of LPA and the complexity of the arrangements.
Solicitors' professional fees are separate from the Office of the Public Guardian registration fee.
You do not have to use a solicitor to make an LPA. However, legal advice can help ensure the document reflects your wishes and reduce the likelihood of errors or uncertainty later.
Can You Cancel a Lasting Power of Attorney?
Yes. If you still have mental capacity, you can revoke your Lasting Power of Attorney if you no longer want it or wish to replace it.
Changes in your circumstances or those of your attorneys can also affect how an LPA operates, which is why it can be useful to review your arrangements over time.
Do I Still Need a Will If I Have Power of Attorney?
Yes. A Will and a Lasting Power of Attorney have different purposes.
A Lasting Power of Attorney deals with decisions made during your lifetime and ends when you die.
Your Will sets out what should happen to your estate after your death.
For that reason, LPAs and Wills are often considered together as part of wider planning for the future.
How Can John Fowlers Help With Lasting Powers of Attorney?
Thinking about a time when you may not be able to make your own decisions is not always easy, but making a Lasting Power of Attorney can give you greater control over what happens if your circumstances change.
At John Fowlers, we can explain the options available, help you decide which type of LPA is appropriate and guide you through the preparation and registration process.
Our team will take the time to understand your circumstances so that you know what you are putting in place, what authority your attorneys will have and how the arrangement will work.
If you are considering making a Lasting Power of Attorney, visit our Lasting Powers of Attorney service page or contact our team to discuss how we can help.