A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint trusted individuals, who are known as attorneys, to make decisions on your behalf if you lose mental capacity.

The advice below focuses on the Property and Financial Affairs LPA. You can establish a separate LPA for Health and Welfare.

What can your attorneys do for you?

The LPA allows your attorneys to make a range of decisions in relation to your finances, including:

• Paying bills,
• Managing bank accounts,
• Making investment decisions, and
• Selling or renting property.

Who can you appoint?

You can appoint anyone that you trust to manage your affairs for you. The attorneys do not need any special qualifications, though they must be over 18, and not bankrupt or subject to a debt-relief order. If you are appointing more than one attorney, you can decide whether they are appointed jointly (all decisions to be made together) or jointly and severally (each attorney can act independently of the others).

When can your attorneys act?

Once signed, your LPA must be registered with the Office of the Public Guardian before the attorneys can act.

The attorneys can usually act immediately once the LPA has been registered, even if you still have mental capacity. This can be useful if you are travelling or physically incapacitated, for example if you are in hospital. It is also possible to specify that your attorneys can only act after you have lost capacity.

How should the attorneys make their decisions?

Your attorneys must always act in your best interests, and involve you in the decision-making process as far as possible. If you have lost mental capacity, they should consider your past wishes, feelings and beliefs before making their decisions.

Your attorneys should assume that you are able to make decisions for yourself unless it is clear that you do not have mental capacity. Even if you are losing capacity, your attorneys should help you to make your own decisions as far as possible. They should not conclude that you lack mental capacity simply because you wish to make a decision that they consider unwise.

The attorneys must consider taking advice where appropriate, especially in relation to investment decisions.

You can include instructions and preferences within the LPA as to how your attorneys should manage your affairs. It is sensible to have conversations with your attorneys while you have capacity so that they are aware of your wishes.

Are they difficult to set up?

The process includes completing the LPA forms and going through the signing process. You will need to meet someone known as a Certificate Provider who will check that you understand the power you are giving away, that you have capacity on the day of signing, and that you are not under any undue pressure.

The Certificate Provider can be your solicitor, GP or someone who has known you for two years or more. Once completed and signed, you then need to register the LPA with the Office of the Public Guardian. There is a registration fee to pay (currently £82 per document).

LPAs are an important part of planning for the future and should be considered as early as possible.

What about other parts of the UK?

This article applies to English and Welsh LPAs. Different rules apply in Scotland and Northern Ireland. 

Stephen Horscroft TEP is a Partner in the Private Client Advisory Group at Cripps, Tunbridge Wells, England