What does lasting power of attorney mean?

What you need to know about lasting power of attorney

Many of us don’t like to think about a time when we’re no longer able to make decisions on our own behalf. Still, having a valid lasting power of attorney in place can ensure that provisions are made should this be the case, and that someone you trust has the power to help should you need it.

Below, our specialists discuss how lasting power of attorney works, what to consider when choosing an attorney, when they become valid, and when they end.

What is a lasting power of attorney (LPA)?

An LPA is a legal document that allows you to appoint one or more people to help you to make decisions, or make decisions on your behalf, should you become unable to make those decisions yourself or don’t have capacity to do so.

If you’re looking at setting up an LPA, it’s crucial to do so while you still have capacity. This’ll enable you to choose people you trust to make decisions on your behalf and decide which decisions they’re allowed to make. The person/people that you choose to appoint are called your attorney(s).

What are the different types of lasting power of attorney?

There are two different types of LPA. The first covers your finances and any property you may have, while the second covers your health and welfare. You can choose to set up both or just one. You can also choose the same or different attorneys for each LPA.

• For finance and property: this allows you to appoint an attorney to make decisions on your behalf regarding your financial affairs and your property. For example, your attorney may be able to invest on your behalf or sell or rent a property you don’t reside in.
• For health and welfare: under this arrangement, an attorney can only make decisions related to your health and welfare if you become unable to make them yourself. This includes decisions about medical treatments and making any arrangements for care if needed.

The health and welfare LPA can only be used by the attorney(s) once the donor has lost capacity. This is different to the property and financial affairs LPA where, if the donor provides consent, it can be used as soon as it has been registered with the Office of the Public Guardian (OPG).

What is the difference between a power of attorney and a lasting power of attorney?

As the name suggests, the core difference between an ‘ordinary’ power of attorney (POA) and a ‘lasting’ power of attorney (LPA) is duration.

Under a POA, the authority bestowed on attorneys to make decisions on your behalf ends if you lose mental capacity. In contrast, an LPA will continue to be valid, and attorneys are still responsible for making decisions in your best interest.

Because of this difference, a POA is often used only for temporary situations and is usually limited to financial matters. It also does not need to be registered to be valid, though some institutions may request a copy to confirm the authority of the attorney.

An LPA, on the other hand, must be registered with the OPG before it is valid, and can cover a wider range of decisions, such as those related to health and welfare.

How should you choose your attorney?

Choosing who to act on your behalf when you are able longer able is very personal decision.

Many people choose to appoint a loved one, such as a family member or close friend. It is also possible to choose a professional, such as a solicitor, to act as your attorney. This can be particularly helpful when setting up an LPA for finances and property, particularly if you have a complex or large estate that requires maintenance and administration.

There are some legal restrictions on who you can choose. For example, any attorney must be over the age of 18, and unless there are exceptional circumstances (for instance, they are your only living relative) they cannot be a care worker.

The most important thing is that you choose someone you trust to make decisions in your best interests, and that they fully understand (and accept) the role and responsibilities being an attorney carries.

When is a lasting power of attorney valid?

Once you’ve worked with a legal expert to make LPAs, you must then register the document(s) with the Office of the Public Guardian (OPG) for your attorneys to be able to use them. There’s guidance online about doing this, or alternatively, we can help you.

So, when do lasting powers of attorney become effective? The powers given to appointed attorney(s) in an LPA are reserved for when the donor can’t make these decisions on their own. This could be due to a serious accident, or an illness which affects your mental capacity, such as dementia.

Provided that the person appointed to make decision on behalf of the donor doesn't die during the donor’s lifetime, then the lasting power of attorney will be valid for the remainder of the donor’s life. It’s important to consider the appointment of replacement attorney(s) to strengthen the validity of your LPAs. If you do wish to appoint replacement attorney(s), it’s also important to clearly state how and when they should commence acting.

When does a lasting power of attorney end?

If no action is taken after the registering of an LPA, the document and the powers reserved under it will remain in place for the duration of the donor’s life. This means that the LPA will end on your death, and the attorney(s) will no longer have any power to make decisions on your behalf. If, however, the donor wishes to revoke the LPA, or make a new one, they can do so whilst they still have capacity.

Does lasting power of attorney continue after death?

Many people wonder, “do lasting powers of attorney continue after death?”. The answer to this question is no. When the donor passes away, any power granted under their LPAs automatically ceases.

The death must be reported to the Office of the Public Guardian, and if you’ve been acting as an attorney under the LPA, you no longer have the power to make any transactions or manage the late donor’s affairs in any way.

What happens to a lasting power of attorney if the attorney dies?

If someone who you’ve appointed as an attorney under your LPA becomes seriously ill or passes away, the next step will depend on your circumstances.

If you’ve appointed additional attorneys, and granted each to make decisions independently, then they might be able to continue to act under the LPA, meaning no changes need to be made.

If your only attorney can no longer act, and you have no replacement attorneys in place, then you’ll need to make a new lasting power of attorney. This can be done easily but is only an option if you still have capacity to do so.

An LPA is an important document that ensures both you and your finances are taken care of when you can no longer do so independently. If you’re looking to make a lasting power of attorney, or make changes to an existing LPA, then our lasting power of attorney solicitors are here for you.

How to apply for a lasting power of attorney

Our experts can help you further understand what responsibilities and conditions come with appointing an attorney. For more information on how our specialist solicitors can help, simply call us on 0330 041 5869. Or, if you prefer, contact us via our online form.