We are all aware that a Will appoints someone to ensure your estate is distributed according to your wishes on your death. However, many people do not realise that no one person automatically has the legal authority to step in and manage your affairs for you if you should lose capacity to manage them during your lifetime.

A Lasting Power of Attorney (LPA) allows you to specify in advance of any loss of capacity who you wish to make decisions for you (your attorney or attorneys) if an accident or illness means that you lose the capacity to make those important decisions yourself. An LPA lets you choose attorneys that you trust to make those decisions for you.

There are two types of Lasting Powers of Attorney available:

  • An LPA for property and financial affairs allows your attorney to make decisions about your finances and property and this power covers, for example, selling your home on your behalf or paying bills for you.
  • An LPA for health and welfare allows your attorney to make day to day decisions about your welfare (where you should live, what you should eat etc.). Where appropriate, this can also cover medical decisions, including a power to consent to or refuse life sustaining treatment on your behalf

The main advantage of having two separate types of LPA is that you can choose the attorneys dependant upon the type of decisions that need to be made. The person or people you wish to manage your financial affairs may not be the same person or people you would like to take decisions in relation to your health and welfare.

Attorneys are under a legal duty to act in your best interests and must involve you in any decision making process where this is possible. If you wish, you can include restrictions or give guidance to your attorney or attorneys in your LPAs so as to limit their decision making to certain assets or situations.

You do not need to put in place both a health and welfare LPA and a property and financial affairs LPA, and can simply choose the document which you feel is relevant to your circumstances. However, generally it is better to have both types in place and consideration should be given to the benefits of both documents.

If you do not have an LPA in place and you lose the capacity to make decisions for yourself, an application has to be made to the Court of Protection for the court to appoint someone to make those decisions on your behalf.

For further information or to make an appointment with a member of our legal team, please email enquiries@wellerslawgroup.com  or telephone 020 8464 4242.