Wills and probate

What's a lasting power of attorney?

We explore what a lasting power of attorney is, when they’re valid, and what happens to an LPA when somebody dies.

24 May 2022

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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 specialist discusses how lasting powers of attorneys work, and when they are valid.

What's 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 happens to LPA when someone dies?

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.

When is an LPA 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 an LPA take effect?

There are two different types of LPAs. One type covers your finances and any property you may have and the other 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.

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, can be used as soon as it has been registered with the OPG.

When does an LPA 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.

What happens to the donor’s property under an LPA?

One thing that’s important to many of our clients, is what happens to the donor’s property under an LPA. When a property and financial LPA is registered, the appointed attorney(s) has the authority to make decisions on the donor’s behalf. These decisions include, but are not limited to, the buying and/or selling property, managing bank accounts and paying bills, dealing with tax affairs and claiming any benefits that the donor is entitled to.

All powers afforded to the attorney under an LPA must be made in the best interest of the donor. If the donor is not completely happy with an attorney making all these decisions, a donor is able to place limits on what an attorney can do.

What happens to an LPA 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.

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 or web chat.

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