Power of Attorney

Lasting Powers of Attorney Explained

What is a Lasting Power of Attorney?

A lasting Power of Attorney is a legal document which allows you to choose who you would want to make decisions on your behalf should you lose your mental capacity in the future. The document is completed in advance of losing mental capacity and is then kept until it is needed.

A lasting Power of Attorney cannot be used until it has been registered with the Office of the Public Guardian. You may decide to register the Lasting Power of Attorney whilst you still have mental capacity and, in this case, the document will allow your attorney to deal with your property and affairs whilst you still have mental capacity. This can be useful if you are unable to attend to your affairs due to ill health for instance.

If however you wish to continue to manage your affairs (and you continue to have the capacity to do so), you will continue to make all of your own decisions. The Lasting Power of Attorney will only come in to play should you lose your mental capacity and your attorney (s) apply for the registration or should you authorise and apply for the registration yourself whilst you still have the mental capacity to do so.

What are the advantages of creating a Lasting Power of Attorney?

Creating a Lasting Power of Attorney allows you to plan in advance who you would like to look after your property and affairs should you lose the capacity to deal with such things yourself. You are able to place restrictions on your Attorney (s) and have the security of knowing who would deal with your affairs in the event that you are unable to do so in the future. You have peace of mind knowing that the persons who may at some stage deal with your affairs are the persons whom you trust.

What is a Lasting Power of Attorney?

What will happen if I don’t make a Lasting Power of Attorney and then subsequently lose my mental capacity?

Are there any safeguards to ensure that my attorney (s) act in my best interests and in accordance with my wishes?

Whilst you maintain your capacity, should your attorney (s) try to register the Lasting Power of Attorney, you will be notified and can object to the registration. You are also able to choose persons whom you would like to be notified should an application to register the Lasting Power be received by the Office of the Public Guardian.

Your attorney (s) are also required to act in accordance with the Mental Capacity Act 2005 Code of Practice. If they are not acting in your best interests, the Office of the Public Guardian can step in and your attorney (s) will be accountable.

What are the potential risks/problems if I don’t make a Lasting Power and I subsequently lose my capacity?

If you lose your capacity and have not made a Lasting Power of Attorney prior to this, other people will have to apply to the Court of Protection and ask for them to make a decision on your behalf. This can be extremely costly, time consuming and stressful for your relatives. With a Lasting Power of Attorney however, you are able to choose who you would want to make decisions for you if you are ever unable to do so yourself.

Another problem frequently encountered when a person loses their mental capacity comes when they are required to move in to residential care. Without a Lasting Power of Attorney, the property cannot be sold and often bank accounts cannot be accessed. This can be extremely stressful and upsetting. Creating a Lasting Power of Attorney enables the Attorney (s) to sell the property on your behalf in this event and also to access your finances for your benefit.