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Why make a Lasting Power of Attorney (LPA)?

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Lasting Powers of Attorney could be considered as a type of insurance. Hopefully they would never be needed but if they are you are in a much better position for having taken one out.

A Lasting Power of Attorney can protect you and your assets if you became incapable of managing your own affairs.

You can become incapable of managing your affairs through various means and they are not just for the elderly. Illnesses such as dementia or Alzheimer’s are often the main reason for needing the document but they can be needed after an accident, stroke or other illness not just limited to the elderly.

You can only make a Lasting Power of Attorney while you have full capacity. They may or may not ever be needed. You do not lose the ability to manage your own affairs; they are only used if necessary and will only be used with your permission or upon receipt of a report from a medical professional to say that you can no longer manage your affairs. If you were to become incapable of managing your affairs and you do not have a Lasting Power of Attorney in place, your family would have to go through the lengthy and costly procedure of obtaining a Deputyship Order.

There are two forms of Lasting Power of Attorney. One is for your property and financial affairs which enables you to appoint someone to look after your finances if you become incapable. The other is for your health and welfare under which you can appoint someone to make decisions about medical treatment, where you live etc.

If you wish to discuss making a Lasting Power of Attorney either for Property and Financial Affairs or Health and Welfare, please contact one of our private client team who would be very happy to assist you.

For further advice or assistance please contact our Private Client Department

Lasting Power of Attorney (LPA)

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A Lasting Power of Attorney (LPA) is a legal document which allows for nominated people (attorneys) to make decisions and act on your behalf. There are two types of LPA: Health & Welfare and Property & Financial Affairs. These have to be separate documents and cannot be amalgamated even if you choose to have the same people act in both.

If you do not have an LPA and later lose the capacity to make decisions for yourself your family would have to use the expensive route of applying for a Deputyship Order at the Court of Protection to take control of your finances.

A Health & Welfare LPA allows for your attorneys to make decisions about what medical treatment you receive, where you live, your daily routine, but most importantly decisions about life sustaining treatment. You can include preferences in the LPA to guide your attorneys.

A Property & Financial Affairs LPA appoints attorneys to handle your finances and property. You can chose to have this particular type of LPA come into effect as soon as it has been registered so that you and your appointed attorneys can work together to organize your finances while you still have mental capacity and then once you have lost mental capacity to hand over complete control.

You are able to choose whoever you wish to act as your attorney as long as you believe that should you lose mental capacity and become unable to make decisions alone that the person you chose will act according to your wishes and in your best interest. You can also appoint replacement attorneys so that should your first choice of attorney be unable to act they can take over.

You do need a Certificate Provider who certifies that you have the relevant mental capacity to make the LPA and that no one is forcing you to do so.

An LPA is an incredibly important document as it enables someone to ensure that your health and welfare and property and financial affairs will always be taken care of even if you yourself are unable to do so.

If you require advice in relation to creating an LPA, contact a member of Adams Harrison’s Private Client Department for expert and professional advice.

What is a Lasting Power of Attorney ?

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We all know that writing a Will is important, but too few of us recognise that we should also consider something called a Lasting Power of Attorney (LPA.) LPAs give another individual the legal authority to look after specific aspects of your affairs. There are two types of LPA:

1.  Health and Welfare– This allows you to choose a person (or persons) to make decisions about things like your daily routine and medical care.

2. Property  and Financial Affairs- This allows you to choose a person (or persons) to make decisions about money and property such as paying bills or selling your home.

Why should I make an LPA?

As people may become incapacitated through accident or illness, we would recommend putting in place an LPA at the earliest opportunity. If you do not have an LPA and later become mentally incapacitated, relatives may face delays and expense applying to the Court of Protection to take control of your finances.
For an LPA to be effective, it must be registered with The Office of Public Guardian. Your Attorneys can only act on your behalf once the LPA has been registered. If it is a Health and Welfare LPA, then they can only act once the LPA has been registered and you have lost mental capacity.

I have already made an Enduring Power of Attorney- do I need to make an LPA?

EPAs were replaced by LPAs in 2007. If you have already made an EPA, it is still valid, but does not allow your Attorneys to make decisions about your health and welfare. You may therefore wish to consider putting an LPA in place for Health and Welfare.

Can Attorneys And Deputies Make Gifts?

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Does a Lasting Power of Attorney or a Deputyship Order provide an attorney or deputy with the authority to give away surplus assets of the donor in the hope of achieving an Inheritance Tax saving? In short, the answer is ‘no’.

A recent case in the Court of Protection has highlighted the issue of gifts made by a deputy acting under a Deputyship Order. The case concerned a widow of 92 years, (‘P’), who lived in a care home.  Her only daughter had predeceased her and P had inherited the whole of her daughter’s estate.  Two relatives were appointed as deputies to manage P’s property and financial affairs.

The deputies applied to the Court of Protection for retrospective authority for various gifts the deputies had made to themselves, their family, and friends.  It was found that over £230,000 had been given away (which amounted to 44% of the widow’s estate.)

The Court refused to grant authority for the majority of gifts and the deputies were held to be personally liable to P’s estate for the unauthorised gifts.  The deputies’ appointments were also revoked.

The Mental Capacity Act 2005 sets out the powers of an attorney acting under a Lasting Power in relation to gifts. The attorney can only make gifts:

  • ‘on customary occasions’ to persons (including themselves) who are related to or connected with the donor, or
  • to any charity to whom the donor made or might have been expected to make gifts,
  • and only if the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of the donor’s estate.

‘Customary occasion’ is defined as:-

(a) the occasion or anniversary of a birth, a marriage or the formation of a civil partnership, or

(b) any other occasion on which presents are customarily given within families or among friends or associates.

Deputies and attorneys should therefore understand that they only have very limited authority to make gifts.An attorney who wants to make gifts for purposes not authorised in the circumstances outlined above must apply to the court for permission.

For further information about Lasting Powers of Attorney please contact us on for expert and professional advice.