It is a sad fact that most of us know someone who has been affected by a physical or mental incapacity in their life.

The Alzheimer’s Society estimates that there are currently around 900,000 people in the UK living with dementia. The rise in people suffering with dementia has been linked to the increasing life expectancy.

Often, the worry of losing physical and mental capacity means that many people seek to make provisions to ensure that their affairs can be dealt with by someone they trust.

How to make provision

One way to prepare for this situation would be to make a Lasting Power of Attorney (LPA).

An LPA is a legal document which allows you to appoint a trusted person (an attorney) to make decisions on your behalf if you lose the capacity to do so. There are two types of LPAs, one of which deals with property and financial affairs and the other in respect of health and welfare matters.

Who can act as my attorney?
Appointing an attorney is a very big decision and it is something that requires careful consideration. You can appoint whoever you want as your attorney, provided that they are aged 18 or over and are not bankrupt.

It is important for you to be confident that your chosen attorneys will act in your best interests.

It is possible that your attorney may be unable or unwilling to act on your behalf, so, your solicitor will usually encourage you to either appoint more than one attorney, or appoint a replacement attorney to act only if needed.

What can my attorney do?

You can decide what decisions your attorney will make for you in the event of you being incapable, and this is explained within the LPA document.

In most circumstances, attorneys are given general authority when acting on your behalf. This means that they have the ability to make any decision that they believe is in your best interest.

There are two types of LPA:

Property and Financial Affairs LPA

This LPA allows your attorneys to be in charge of the following (please note this list is not exhaustive):

  • Dealing with property;
  • Paying bills
  • Operating bank accounts;
  • Dealing with investments, pensions, insurances etc.
  • Health and Welfare LPA

This LPA allows attorneys to make these decisions (please note this list is not exhaustive):

  • Your diet;
  • Medical treatment;
  • Where you should live;
  • Who you should have contact with;
  • To give or withhold consent for life sustaining treatment

What can’t my attorney do?

As a general rule, attorneys do not have authority to make gifts with some minor exceptions. If substantial or tax planning gifts are contemplated, prior authority will need to be obtained from the court of protection.

Generally, your attorney cannot delegate their authority in any way. For example, if your attorney is dealing with your investments, they will not usually have the authority to instruct an investment manager. However, if you have sizeable investments, your solicitor might recommend you include a specific authority within your LPA, to allow your attorney to instruct a manager and therefore delegate their authority.

Your attorney will not be allowed to make decisions to benefit themselves, if it is not in your best interest.

What if I lose capacity before I appoint an attorney?

If you fail to put an LPA in place before you lose capacity, it will be necessary for an application to the Court of Protection to be made to appoint a deputy to act on your behalf. This can be extremely time consuming, stressful, and is likely to involve greater expense.

During the time that it takes for the application to be processed, no one will be able to assist you with the management of your affairs. This can understandably cause upset and distress.

What can I do?

If you are concerned about safeguarding your future to ensure that your affairs can be dealt with by those who you know and trust, creating LPAs is a sensible safeguard.

If you wish to speak to a solicitor about Lasting Powers of Attorney, either call us on 03333557666  or contact us by email.