Lasting Powers of Attorney – Will I lose control and are they safe?
Lasting Powers of Attorney (LPAs) are legal documents by which an individual may appoint another person or persons (attorneys) to make decisions on their behalf. It is possible to appoint attorneys to make Health and Welfare decisions and/ or to make Property and Financial decisions.
Drawing up an LPA while in good physical and mental health does not mean that an individual is giving up control of their financial affairs or health and welfare decisions. It is simply putting measures in place for the future, in case they are needed.
It is possible to appoint one attorney or more than one, and to appoint replacement attorneys if an attorney is unable to act when the time comes.
An LPA must be registered with the Office of the Public Guardian before it is valid and can be used.
A Property and Finance LPA can be used when the individual has lost mental capacity to manage his or her financial affairs but also if the individual has not lost capacity but there is a physical problem such as old age and frailty or the effects of suffering a stroke, for example. While an individual continues to have mental capacity to manage his or her own financial affairs, an attorney can only act with the individual’s knowledge and approval.
A Health and Welfare LPA cannot be used by the attorneys unless or until the individual has completely lost all ability to make any decisions about his or her health and welfare. It is possible for the individual to give his or her attorneys the power to make life sustaining treatment decisions.
Safeguards and Accountability
The choice of attorney is very important. The attorneys should always be a person or people that the individual trusts implicitly such as family members or close friends. It is possible to choose a professional person to act as attorney, usually where there are no family members or close friends or there are safeguarding issues.
Although attorneys may be granted significant authority under LPAs, the Mental Capacity Act 2005 (MCA) imposes legal safeguards to protect the individual’s interests. For example, it is an overriding legal requirement that the attorney always acts in the individual’s best interests regardless of the best interest of anyone else. The attorney must always help an individual to make a decision rather than just making a decision without first establishing if the individual has a view or is capable of making the decision his or herself. The attorney has limited ability to use the individual’s property to benefit anyone else other than for example, birthday or Christmas presents to close family members. An attorney cannot act under an LPA to change an individual’s will. Unless specified in the LPA itself, attorneys are not allowed to pay themselves for what they do and are only entitled to out of pocket expenses.
Our Expertise in LPA Matters
At Progression Solicitors we have specialist solicitors with expertise in guiding individuals through the creation of LPAs, offering tailored advice and ensuring that wishes are accurately reflected in the documents and offering advice on arrangements made. Our experienced team is located at our offices across South Cumbria and Lancaster and are committed to empowering clients and their chosen attorneys with the necessary tools to navigate complex decision-making scenarios with confidence.
For personalised advice and assistance regarding Lasting Powers of Attorney, contact our experienced Private Client team.
The content of this article does not constitute legal advice and should not be relied upon. Content may be subject to change and we accept no liability for individuals relying on the information within this article. Contact a member of our team for legal advice tailored to your individual needs.
