What is A Lasting Power of Attorney?
A Lasting Power of Attorney is an enduring document that gives the attorney (also called ‘attorney in fact’) legal authority to make decisions on behalf of a person who has been deemed incapable. It can be used, for example, when someone’s mental capacity starts deteriorating or they are old enough and frail enough not to have the cognitive ability to make decisions.
The power of attorney must be created before a person becomes unable or unwilling to do so themselves (i.e., when they are still mentally capable). This ensures that their wishes will be carried out.
A power of attorney can also take many other forms: for example, it may cover only certain areas such as financial affairs, property management, medical care, and treatment, or any combination thereof.
What Does a Lasting Power of Attorney Financial Affairs and Property Involve?
There are two types of Lasting Power of Attorneys Property and Financial Affairs.
A Property & Financial Affairs Power of Attorney covers all property and financial affairs, including the right to access bank accounts. A Specific Property & Financial Affairs Power of Attorney is one type that covers only certain areas such as financial affairs, property management, medical care, or treatment thereof.
The Lasting Powers of Attorneys Property and Financial Affairs are designed to ensure their wishes will be carried out after they pass away if it’s required.”
What Can Financial Attorneys Do?
A Power of Attorney grants someone (the “attorney-in-fact”) power to act on your behalf in financial matters.
You can grant someone the power to act on your behalf in financial matters such as accessing bank accounts, paying bills or handling any other financial transactions.
An agent under a power of attorney may be authorized to handle the donor’s finances and personal property, including:
- Access the donor’s bank account(s) and use for payment of expenses;
- Pay bills owed by the donor;
- Handle any other financial transactions.
Typically, a power of attorney is granted in writing to an individual (the “agent”). The grantor designates certain powers that he or she wishes the agent to exercise and limits or prohibits others.
And if that’s not enough,
A power of attorney may be canceled by notifying all parties with interest, including any banks that have been told of the grantor’s authority.
This should also include your doctor, lawyer, accountant and anyone else who knows your financial affairs.
When Should You Start Using an LPA Financial Affairs?
As soon as the court lawfully appoints you,
A date cannot be fixed for this until it is known whether the donor will recover or die before an LPA can be made, and then how quickly such a request could reach court if needed.
However, people typically make their LPA long in advance of any need to use it so that they have time to consider all aspects of its content and implications.
This also means that there may not be any change from what would happen without an LPB because these care decisions were taken at an earlier stage when they were well enough to do so themselves.
But wait, let me tell you something
The power granted under a Power of Attorney lasts only for as long as necessary – usually where someone has lost the mental capacity to make major decisions for themselves.
At this point, it will cease, and the person becomes what is known as ‘incapacitated’ or unable to manage their affairs – in other words, they have become a ‘ward of court1‘.
The Role of Lasting Power of Attorney for Property and Financial Affairs
There are many reasons why a person might need to consider taking out Power of Attorney for Property and Financial Affairs. The most common is when someone has an illness or condition that may lead them to be unable to manage their affairs, such as dementia, stroke, or heart attack. In these circumstances, it can be beneficial for an agreement to ensure that someone else, the attorney or proxy, can take over and manage things on their behalf.
The Mental Capacity Act is not always sufficient because it does not cover financial matters such as banking arrangements and other investments. This means that if a person becomes incapacitated, they may need a Lasting Power of Attorney to be set up in advance.
How to Get an LPA for Property and Financial Affairs?
The process is a little more complex, but it’s worth taking the time to get one set up. It may be something that you will need in future, so it’s best to think ahead and prepare for all eventualities.
The first step would be to ensure that your GP provides an opinion on your mental capacity before setting up an LPA. You’ll also need two medical practitioners or social workers who are independent of each other (not family members) to provide their views as well.
This could either take place at a hospital or doctor’s surgery, providing written statements that confirm whether they agree about the individual needing help managing their affairs – called ‘being of diminished capacity. If this is successful, then the following steps can go ahead.
What Could Happen If I Don’t Set Up a Property and Financial Affairs Lasting Power of Attorney?
If you don’t set up an LPA, the court will decide who can manage your affairs – this could be a family member or someone outside of it.
The legal document isn’t legally binding until signed, so there would be no need to get approval from those consulted beforehand to revoke it.
However, it does mean that any arrangements made by the agent whilst they have been granted Power of Attorney are beyond their control and now count as final legal decisions (such as selling property).
Property power form is a document that transfers all the rights, titles, and interests of a person to another. It’s commonly used by people who are not mentally capable as they can give up their rights, title, and interest.
When can I Make a Property and Financial Affairs Lasting Power of Attorney?
When you can no longer make financial decisions about your property and financial affairs for yourself
To be eligible to use a Property and Financial Affairs Lasting Power of Attorney, an individual must meet the following criteria:
- The person must have capacity at the time they grant their power but may lose this capacity in future;
- They must not be disqualified by law from managing their own money or property – such as bankrupt people;
- When two doctors have assessed the person’s need for assistance with their financial affairs. This assessment will usually take place within 12 months before the date when it is granted. The assessments should confirm that there is a significant risk if someone doesn’t assist them with these tasks due to either physical illness, mental illness or poor cognition;
- The person has not assigned their power to someone else before the assessment.
If any of these criteria are not met, they may still be eligible for a Property and Financial Affairs Lasting Power of Attorney if granted by court order. A doctor’s report confirming significant risk will also be required.
How do I make an LPA?
Step One: You should approach your chosen attorney. They will help you draft a document specifying who is to be granted the Power of Attorney, what decisions they are authorised to make on behalf of their client and where there might be any restrictions or limitations placed upon them in respect of those powers;
Step Two: It is vital that the person granting this legal power also instructs an attorney – usually someone from within their family or close circle – to act as resident agent2. This person will work alongside the appointed representative for the duration of time when it becomes necessary to manage real property and affairs. Under no circumstances should both parties be the same individual unless requested explicitly by other persons with solid ties (i.e., parents, spouse).
Where Can I Get Individual Legal Advice about Powers of Attorney?
The Government’s website provides information on this subject and can be accessed here:
When Does a Financial Power of Attorney Ends?
A Financial Power of Attorney would naturally end when the person who initially granted it becomes incapacitated. They may also choose to revoke the power by writing a letter addressed to their GP, which should be signed and dated in front of two witnesses.
What's the Difference Between a Durable and a Regular Power of Attorney?
A Durable Power of Attorney will remain in force even if the person who granted it becomes incapacitated. A Regular Power of Attorney can only be used when its creator is mentally competent and able to make decisions for themself, although not required to do so by law.
How Much Power Does a Power of Attorney Have?
A Financial Power of Attorney can be granted to a person who will act on behalf of the incapacitated creator, but only for specific purposes. They may have limitations, such as not making changes to the property held in joint ownership or making medical decisions without approval from other parties.
We can say that a Power of Attorney isn’t something you enter into lightly because it’s an important decision that could affect your future. The Power of Attorney is an outstanding way to manage affairs if you cannot do so yourself, but it should be used with caution and care.
A Power of attorney can only be granted by someone who has not been declared legally incapable; if they have, then other avenues must first be attempted. So, it is imperative to have a Power of Attorney in place before an illness, accident, or other events that could render you incapable arise and leave your loved ones with no means of managing property and affairs on your behalf.