With the ongoing concern for Sir Ranulph Fiennes’ care making headlines worldwide this week, issues surrounding lasting powers of attorney have understandably come under renewed scrutiny.
The coverage has raised wider questions about what a lasting power of attorney actually permits someone to do and, just as importantly, where the limits lie.
Here, Annabel Burchett, Partner in our Wills, Trusts, Capacity and Probate team, explains what a lasting power of attorney allows, the limits it places on attorneys and the safeguards available.
What is a lasting power of attorney?
A lasting power of attorney, or LPA, is a legal document that allows you to appoint one or more trusted people, known as attorneys, to help you make decisions or make decisions on your behalf, if you are unable to, or permit them to do so.
There are two types of LPA and you can choose to make one or both.
A property and financial affairs LPA covers decisions such as managing bank accounts, paying bills, collecting benefits or a pension and selling your home. Once it has been registered, your attorneys can use it with your permission while you still have mental capacity.
A health and welfare LPA covers decisions about matters including your daily routine, medical care and moving into a care home. Unlike a property and financial affairs LPA, it can only be used when you are unable to make the particular decision yourself.
You can also decide whether your attorneys should have authority to make decisions about life-sustaining treatment.
To make an LPA you must be aged 18 or over and have mental capacity. It must be registered with the Office of the Public Guardian before it can be used.
An LPA is not unlimited authority
A common misconceptions about an LPA is that appointing an attorney gives that person complete control over your affairs. It does not.
“An LPA is about trust”,” says Annabel. “Attorneys have legal responsibilities and must always remember that they are making decisions for somebody else, not themselves.”
Under the Mental Capacity Act 2005, an attorney must act in your best interests.
Importantly, having an LPA does not mean an attorney automatically takes over decision making. You should be supported to make your own decisions wherever you are able to do so.
When an attorney does need to make a decision for you, they should consider matters including your past and present wishes and feelings, and the beliefs and values that would be likely to influence your decision.
Attorneys must also follow any instructions included within the LPA, respect your confidentiality and keep appropriate records.
What can't an attorney do?
An attorney cannot simply make whatever decision they believe is easiest.
They must not use their position to benefit themselves, and they cannot delegate their role to somebody else.
There are also important differences between the two types of LPA.
For example, a health and welfare attorney cannot make a decision on your behalf if you still have the mental capacity to make that particular decision yourself.
An attorney's authority can also be limited by instructions included when the LPA is made.
“The important point is that an attorney is accountable,” says Annabel. “They are trusted with significant responsibility, but there are safeguards around how that responsibility must be exercised.”
Should I appoint more than one attorney?
You can appoint more than one attorney and decide how they should make decisions.
Attorneys can be appointed to act jointly, meaning they must make decisions together, or jointly and severally, which allows them to make decisions either together or independently.
You can also specify that some decisions must be made jointly while others can be made separately.
There are advantages and disadvantages to each approach, so it is important to consider what would work best for you and the people you intend to appoint.
“Choosing your attorneys is probably the most important part of making an LPA,” says Annabel.
“Having more than one attorney can share the responsibility and provide different perspectives, but you also need to think about whether those people will be able to work together when difficult decisions have to be made.”
What happens if my attorney can no longer act?
You can name replacement attorneys when making your LPA.
They can step in if one of your original attorneys is no longer able to act.
This can be particularly important because the way your attorneys have been appointed can affect what happens if one of them dies or can no longer fulfil their role.
What happens if there are concerns about an attorney?
There are safeguards where concerns arise about the way an attorney is exercising their powers.
Concerns can be reported to the Office of the Public Guardian, which is responsible for protecting people in England and Wales who may not have the mental capacity to make certain decisions for themselves.
The OPG can investigate concerns about an attorney and may contact relatives, banks, care workers and others as part of that process.
The Court of Protection can also make decisions about LPAs and the powers of attorneys. In serious cases, action can be taken to stop somebody acting as an attorney.
LPAs aren't just for older people
LPAs are often associated with ageing, dementia or planning for care later in life.However, you do not need to be elderly or unwell to benefit from putting one in place.
An accident, serious injury or sudden illness could leave somebody temporarily or permanently unable to make decisions at any age.
“People in their 30s and 40s often tell me they are too young to think about an LPA,” says Annabel.
“But an LPA isn't really about age. It is about planning for the possibility that, for whatever reason, there may come a time when you cannot make a particular decision yourself.”
“People often assume that being next of kin means they will automatically be able to step in,” says Annabel. “That isn't necessarily the case.
“Making an LPA allows you to choose who you trust while you are able to make that choice yourself.”
Have the conversation before you need it
Creating the legal document is only part of good planning.
Your attorneys will be in a much better position to represent your wishes if they understand what matters to you.
That could include conversations about where you would prefer to live if you needed care, your views on particular types of treatment, how you would want your money managed and
the values you would want to guide difficult decisions.
“Having these conversations while everybody is fit and well can make a huge difference,” says Annabel.
Talk to our team
If you would like to make a lasting power of attorney, review an existing LPA or discuss who you should appoint as your attorneys, our Wills, Trusts, Capacity and Probate team can help.
We have offices in Banbury, Bicester, Cheltenham and Rugby. Call us on 03330 525406 or email info@brethertons.co.uk.
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