Lasting Powers of Attorney

Ellie Hirst, Solicitor at Chadwick Lawrence, Huddersfield, shares her knowledge of lasting powers of attorney in her latest guest blog.

Lasting Powers of Attorney are legal documents that operate during your lifetime to authorise others (referred to as 'Attorneys') to deal with your property and finances, and/or to make decisions relating to your health and care. 

There are two types of Power of Attorney:-

  1. Lasting Power of Attorney for Property and Financial Affairs.

This document allows you to appoint an Attorney to deal with your finances, which may include making decisions regarding closure or management of bank accounts, dealing with your tax position, claiming benefits/pensions, paying your bills and selling property/investments (for example, if you were to move into residential care).

For this document, you have a choice as to whether to allow your Attorneys to act for you as soon as the document is registered (with your consent, only) or only if you have lost mental capacity and can no longer make decisions for yourself.

You can appoint different Attorneys for your personal and business affairs. For more information in relation to Business Powers of Attorney, please see our separate factsheet on this topic.

Your Attorney would not have the authority to make a Will on your behalf, nor would they have the authority to make gifts unless on certain occasions (such as a wedding or occasions where presents are given within families), or to charities to whom the donor made or might have been expected to make a gift to. Any gift must be reasonable in the circumstances, considering the size of the donor's estate. If an Attorney wishes to make substantial gifts (for example in the interest of Inheritance Tax planning), an application to the Court of Protection to obtain authority must be made to authorise the gift.

  1. Lasting Power of Attorney for Health and Care

This document allows you to appoint an Attorney to make decisions relating to your health and welfare, and those decisions may include consenting or refusing life sustaining treatment, where you may live if you were to move into residential care, and your daily routine. This document can only ever be used if you have lost mental capacity, so your Attorneys could only ever make decisions relating to your Health and Care if you are unable to make those decisions yourself.

Your Attorneys must always act in your best interests and you retain control of your affairs until you are unable to make those decisions for yourself. The Mental Capacity Act 2005 also creates a duty on the Attorneys to follow the Code of Practice, which provides guidance on decision making. Failures to follow the code may be considered if there is a complaint lodged with the Court of Protection, to determine whether the individual is acting in the best interests of the donor.

The code of practice can be found at:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf

You can appoint one of more Attorney to act on your behalf. Your Attorneys do not need to be the same person for both types of Power. You can also appoint 'replacement Attorneys' so that in the event that your original Attorneys cannot act by reason of their own incapacity or death, then the replacement Attorneys can step in and act. You cannot appoint a minor or a bankrupt individual to be your Attorney. In order to be legally valid, the documents are put through a registration process so that they can be used by your Attorneys.

To contact Ellie and the team at Chadwick Lawrence, please find details below:

https://www.chadwicklawrence.co.uk/your-team/

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