Lasting Power of Attorney: What is it?

A power of attorney is a legal document, witnessed by a solicitor, which grants a person (the donee) the power to act on someone else’s (the donor's) behalf, protecting their interests when they are unable to do so for themselves, perhaps through illness, frailty, or lack of mental capacity.

The knowledge that a trusted family member or friend will be in a position to make decisions and take care of one’s affairs, can bring peace of mind in the midst of illness and uncertainty.

Granting a power of attorney restores a measure of control when the future is uncertain.

There are several types of power of attorney, including:

• A general power of attorney. This can be put in place quickly, since it does not need to be registered. It can be used as soon as the donor has signed it. However, the attorney’s authority becomes invalid as soon as the donor loses mental capacity or dies.
• A lasting power of attorney (LPA) is a little more complex, and, since it needs to be registered with the Office of the Public Guardian, takes longer to set up, but endures once the donor loses mental capacity or dies.

There are two types of Lasting Power of Attorney, dealing with different aspects of an individual's life:

• Firstly, the Property and Finance LPA enables the donor’s attorney (or attorneys) to handle matters such as paying bills and mortgages, buying and selling property, handling bank accounts, investments, pensions and benefits, entering into agreements, and so on. The donor can authorise their attorney to make all decisions on their behalf, or can restrict their authority to certain decisions or situations.
• Secondly, there is the Health and Welfare LPA. Here, the attorney only assumes authority once the donor has lost mental capacity, on decisions concerning the donor’s medical treatment, which might cover giving or refusing consent for life-sustaining treatment, and the donor’s routine and living arrangements.

For business owners, a corporate power of attorney can be granted to a representative so that, in the absence of the director, the business can operate as normal.

Anyone appointed as an attorney owes a "fiduciary duty" to the donor. This means an attorney must act honestly, not make any unauthorised profits from their position as a fiduciary, and not put themselves in a situation where their interests conflict with those of the individual to whom the duty is owed: the donor. An attorney should keep detailed accounts in all dealings as an attorney with the donor’s money.

Who can set up a power of attorney? Anyone over 18 can set up an LPA, if they have the mental capacity to do so.

If you or a loved one would like to speak to an expert about setting up a power of attorney of any sort, the team at Samuels can guide you through the process. We can help you sett up or amend a power of attorney, or advise you about how a power of attorney is being operated.

Contact us today to find out how we can help you. 

Article credit: Lalla Merlin