Lasting Power of Attorney
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Our lasting power of attorney solicitors are expert in supporting people to make plans in case a time comes where they cannot make decisions for themselves.
We have extensive experience supporting people with all matters relating to power of attorney orders, including any disputes that might arise.
Our mental capacity team also supports families when someone who cannot make their own decisions has not set up a power of attorney.
If you would like advice or guidance, please do get in touch.
What is a lasting power of attorney?
A lasting power of attorney is a legal document that nominates someone else to make decisions and act for you if you are unable.
A Lasting power of attorney comes in two forms and allows a named person, or more than one named people, to make decisions about either your:
- health and welfare (such as what medical treatment you should receive)
- property and financial affairs.
Many people decide to create powers of attorney to cover both things. You can name the same person to make decisions about both or choose to assign different responsibilities to different people. The rules governing power of attorney in Scotland and Northern Ireland are not the same as those for England and Wales.
Who should create a power of attorney?
Anyone aged over 18 who has the mental capacity to make their own decisions can make a lasting power of attorney – and there is a good reason for everyone to do so.
No one ever knows they are about to suffer an accident, injury or illness that will affect their mental capacity (ability to make their own decisions).
People can suffer temporary or permanent issues with their mental capacity, including a head injury, brain damage, coma, concussion, stroke, mental health issue or Alzheimer’s.
If a power of attorney is in place, it means you have already nominated someone to make any necessary decisions on your behalf. It will reduce delays on decisions and lower the costs of sorting things out in court. Overall, it makes the process easier for loved ones.
WE ADVISED SARAH AND ENSURED THAT THE LASTING POWERS OF ATTORNEY WERE MADE QUICKLY AND WITH THE KNOWLEDGE OF HER THREE CHILDREN TO AVOID LATER DISPUTE.
Power of attorney established due to memory issues
Sarah* contacted us to establish a power of attorney when she noticed some issues with her memory.
Sarah was a widow in her 70s with three grown-up children. Two of her children lived a significant distance away (one of them in America).
Sarah decided to name her daughter who lived close by as her attorney and another daughter as a replacement attorney – to step in if her first daughter was unable to fulfil the role.
We worked with Sarah’s GP to ensure the lasting power of attorney was quickly and thoroughly organised with the knowledge of her three children to avoid any later disputes.
*Name has been changed.
What if there is no power of attorney in place?
Where someone is no longer able to make their own decisions and a power of attorney is not in place, our mental capacity solicitors can provide support.
In these cases, it is necessary to apply to the Court of Protection for a deputy to be appointed. A deputy is granted powers by the court similar to those held by someone who is a named power of attorney. Our solicitors also deal with deputyship applications.
It means the court will decide who makes decisions on behalf of a person that is unable to do it for themselves.
It is usually much less complicated, costly and upsetting for a family if a power of attorney has already been appointed according to an individual’s wishes. Deputyship proceedings are sometimes unavoidable, such as when a child who lacks mental capacity reaches 18.
Find out more via our: Guide to deputyships.
What does a Power of Attorney cost?
Registering a lasting power of attorney (LPA) costs £82 for most people[1]. This fee would need to be paid twice if you wish to create one LPA for health and one for financial matters too (a total of £164).
If you want a solicitor to help and guide you through the process, you will need to pay for their time and expertise on top.
As with all matters of law, whilst it may be tempting to organise the registration of an LPA yourself, appointing a solicitor can save money and complications in the long term. A solicitor will ensure the LPA registration is completed without error. Errors could have to be resolved in court and may lead to a family dispute.
[1] Fee correct as at May 2021
Who should I nominate to hold power of attorney for me?
Whoever you nominate as an attorney needs to be someone you trust to make decisions in your best interests and that you know is comfortable with holding that role.
It is common to choose:
- a spouse (husband, wife or partner)
- grown-up child
- adult sibling
- other relative
- close friend
- a solicitor
It is possible to choose more than one attorney and, if you do, it’s necessary to decide if they can each make decisions for you either together or separately (known as jointly or severally) or if they need to discuss and agree on every decision.
Attorneys must be aged 18 or over and have the mental capacity to make their own decisions.
They do not need to live in the UK or to be a British citizen.
A property and financial affairs attorney cannot be bankrupt or subject to a ‘debt relief order’.
What if there is a dispute over a decision made by a power of attorney / what if two people with power of attorney can’t agree?
If there is a dispute over what is in the best interests of someone who has lost mental capacity, solicitors can help.
Solicitors can mediate and, if necessary, support an application to the Court of Protection to rule on the decision.
It is usually best to avoid a court case where possible as it can be time-consuming, stressful and costly.
Specialist power of attorney solicitors have experience of dealing with disagreements and disputes and can often help to resolve the issue in a more informal way.
Disputes can arise when two people have the best interests of someone at heart but disagree over what should be done.
This could include whether to:
- sell a house or rent it out
- organise care at home or in a residential setting
- pursue certain medical treatments.
Working with a solicitor when you register a power of attorney can help to lay the solid groundwork to help avoid disputes arising later.
Do I need a solicitor to create a lasting power of attorney?
It is possible to register a power of attorney without the support of a solicitor, but by doing so you may miss out on useful advice and guidance.
A specialist solicitor will likely raise issues you would not otherwise consider when registering the power of attorney. Dealing with those issues in advance can prevent a lot of difficulties later or the inconvenience and cost of having to make changes to the power of attorney registration. A solicitor may also help move the registration along quicker without the need for clarifications or amendments, which can be particularly important if there is a diagnosis of a degenerative illness that affects mental capacity.
Mistakes and omissions, when creating a power of attorney, can lead to complex disputes and misunderstandings that may even have to be resolved in court.
How does a power of attorney differ from an ‘advance decision’ or living will?
An advance decision or living will is very different to a power of attorney.
Power of attorney gives legal responsibility to one or more named people to make decisions on your behalf if you are unable to.
An ‘advance decision’ or living will is your opportunity to detail for yourself what treatments or medication you may or may not wish to have if certain medical conditions arise. This may include, for example, a ‘do-not-resuscitate’ request.
We can provide support with making a living will too. Contact us for more information.
Can you object to a power of attorney appointment or decision?
There are ways to object to the decision or a power of attorney or to the appointment of a specific person as a power of attorney.
Both of these things can be quite complex and it may be best to try to resolve the issues initially via mediation rather than through official legal processes.
Enable Law’s power of attorney solicitors may be able to help if you have an objection to the decisions being made or the person appointed. Do get in touch.
Roles and responsibilities of a Deputy
Where someone lacks the capacity to manage their own affairs then an application to the Court of Protection will need to be made for a Deputy to be appointed. The role of a Deputy is to manage their affairs for them. That Deputy can either be lay (for example a family member) or professional (for example a Solicitor).
Even though someone has been assessed by a medical expert as lacking the capacity to manage their own affairs the Deputy will still work closely with them and provide all practicable assistance and support to help them make their own decisions. In the event that is not possible the Deputy will need to make whatever decisions are necessary and are in the best interests of that person. Just because someone has been assessed as lacking capacity does not mean they should be treated as being unable to make any decisions.
To find out more, visit our dedicated guide.
