We can help draft a suitable power of attorney that allows appointed individuals to manage a person's affairs and healthcare issues in a way that they approve, if they become unable to do so themselves.

We also have extensive experience in registering existing enduring power of attorneys (EPAs) and lasting power of attorneys (LPAs), as well as in making applications to the Office of the Public Guardian (OPG) and the Court of Protection (COP), to appoint a suitable person as a deputy in the absence of a power of attorney.

A power of attorney is a legal document, which allows someone (the donor) to ensure that decisions can be made for them by a chosen individual or individuals in the manner they would want, should they lose their mental capacity. Under a power of attorney, the selected person (the attorney), can make decisions that are as valid as those made by the donor.

LPAs replaced EPAs in 2007 (although existing ones remain valid) and there are two types. They can be granted separately or at the same time, depending on the donor's wishes.

Types of LPA
Property and financial affairs LPAs

Here, an attorney is given the power to make decisions about all financial and property-related affairs. The donor has the option to dictate whether their attorney is allowed to make decisions as soon as the LPA is registered or only once they no longer have mental capacity. This type of LPA can give authority over (among other things), property and mortgages, bank accounts, access to financial information, income, tax affairs and, to an extent, making gifts.

Health and welfare LPAs

These give an attorney the authority to make all personal welfare decisions on the donor's behalf, although only once they lose the capacity to make it themselves. Attorneys can make almost all personal welfare and healthcare decisions, including accommodation, care provision, medical treatment, assessments for community care services, participation in social activities and personal correspondence. The exceptions are decisions on life-sustaining treatment and where the donor has made an 'advance decision' to refuse any specific treatment.

Advantages of an LPA

An LPA helps people plan how their health, wellbeing and financial affairs will be managed in the future. This allows them to plan in advance:

  • The decisions they want to be made on their behalf if they can no longer make these themselves
  • The people they want to take them
  • How they want the decisions made

LPAs also have safeguards to reduce the risk of abuse of power by an attorney. These include:

  • A requirement to follow the Code of Practice of the Mental Capacity Act 2005 and act in the donor's best interests at all times
  • Registration with the OPG in order to be valid. Once registered, an LPA is a public document that anyone can read and view the scope of the power and any restrictions, conditions or guidance
  • An option to choose up to five people who will be notified of an LPA's registration. This allows them to raise any concerns they may have, for example, if they feel that a donor has been placed under duress
  • The chance to include specific restrictions and conditions over the LPA, so that it is tailored to their wishes
  • The choice to appoint multiple attorneys, with restrictions on their powers, to ensure they work together
  • A requirement for an independent third party (the certificate provider), to certify a person's capacity as a donor when making the LPA
Position without an LPA

Without an LPA in place, if a person loses the ability to make decisions or themselves, another will have to apply to the COP to become a 'deputy'. The scope of their power will be decided by the Court and it will not approve a deputyship application as a matter of course. Indeed, it will be reluctant to in the case of health and welfare matters. An application for deputyship is likely to be costly and time-consuming for a prospective deputy.

To speak to someone directly for straightforward advice on these complex issues, please get in touch.

Key contacts

Meet the team
Pervinder Kaur

Pervinder Kaur

Partner, Head of Leeds Office | Head of Private Capital
United Kingdom

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Yorke Eaton

Yorke Eaton

Partner, Private Capital
United Kingdom

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