Having a Lasting Power of Attorney is necessary to assist those with or without the capacity to provide support should they need help when arranging care for themselves or managing their finances. This article is for those looking to appoint an Attorney by making a Lasting Power of Attorney or those who have recently been nominated as an Attorney.

What is Lasting Power of Attorney?

A Lasting Power of Attorney is a deed that allows a nominated person or multiple individuals to act on behalf of someone – both when they lack the mental capacity to make their own decisions or if they want help.

There are 2 different types of Lasting Power of Attorney:

  • Lasting Power of Attorney for financial and property affairs
  • Lasting Power of Attorney for health and welfare matters

An Attorney or Attorneys can be appointed to manage either financial, property affairs or health and welfare matters, or both. Someone who is an Attorney for finance and property affairs will be able to take care of the property and finances on behalf of the individual, whereas a health and welfare Attorney will be responsible for arranging personal and medical care. However, the Attorney or Attorneys always have to act in the best interest of the individual.

An Attorney for financial and property affairs (whether or not there is capacity – if authorised) can:

  • Deal with routine finance responsibilities
  • Pay bills and banking
  • Stop and set up a direct debit
  • Arrange maintenance work
  • Purchase care equipment
  • Buy and sell property

An Attorney for health and welfare matters (only when the individual lacks capacity) can:

  • Be responsible for health and wellbeing
  • Arrange medical care and care provision
  • Organise living arrangements
  • Arrange meals and personal care

Davis Blank Furniss recommends setting up a Lasting Power of Attorney in advance of needing one. If someone is unable to appoint someone of their choice as an Attorney due to a lack of capacity, a Deputy Order has to be obtained by Court Order which can be timely and expensive.

What happens if there is no Lasting Power of Attorney?

When the individual’s health declines to the point where they are no longer capable of making or communicating their own decisions, it is often assumed that their spouse or civil partner will automatically take the role of Attorney, however, this is not the case.

Should the event arise where there is a need for an Attorney and one has not been appointed, an application will need to be made to the Court of Protection for a Deputy Order. The Court of Protection will decide whether the individual has the mental capacity to make a decision. The Court may make an order related to health, property and finance and can appoint a duty to make such decisions.

Can I change a Lasting Power of Attorney?

Yes, it is possible to change a Lasting Power of Attorney if the individual still has the mental capacity to make decisions. To make changes, a request needs to be made to the Office of the Public Guardian (OPG).

If you want to remove your Attorney or Attorneys, you will need to send a partial Deed of Revocation to the Office of the Public Guardian. A free template for this is available on the Government website.

What are the limits of a Lasting Power of Attorney?

There are limits to what an Attorney can do and those limits are defined depending on what type of Lasting Power of Attorney has been created. Those who have been appointed to manage finance and property affairs do not have the authority to make decisions based on health and welfare, and vice versa. Restrictions and controls can be included.

Here at Davis Blank Furniss, we can discuss with you and your loved ones the best route to ensure those you care about are protected, and what kind of Lasting Power of Attorney would best suit your needs. Call us today for free, friendly advice.

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