Will Writing: Lasting Power of Attorney (LPA) in the Will process

It would be remiss of us to provide for you a series about Will writing without also delving into the significance of a Lasting Power of Attorney (LPA).

Created under the Mental Capacity Act 2005, an LPA is a legal document that allows you to choose people that you trust to make decisions about your finances and your health and welfare on your behalf at a time in the future when you’re unable to make those decisions yourself.

Reasons that may render you unable to make decisions for yourself could be injury, illness or loss of mental capacity. The purpose of an LPA is to ensure that the important decisions pertaining to you are made with your best interests in mind and reflect your wishes.

The two types of LPAs

There are two main types of LPA:

Property and Finance LPA

As the name suggests, this LPA allows your chosen attorneys to make decisions on your behalf regarding your finances. This can include things like paying your bills, opening and closing bank accounts, collecting pensions and benefits and even selling your home.

With your explicit permission when setting it up, this type of LPA can be started when you decide i.e. with immediate effect or a specific time in the future. You may also choose to limit authority and have the right to request updates on your money and how it is spent.

Health and Welfare LPA

This LPA allows your attorneys to make decisions on your behalf about your own personal welfare and care. This can include things like what medical treatments you receive, where you live and day-to-day matters such as your diet, dress or daily and social routine.

This type of LPA can only be used if you no longer have mental capacity.

It’s worth noting that, whilst you retain mental capacity, neither of these LPAs are permanent and can be cancelled and revised by going through the appropriate channels.

Age UK have some key facts on each of these LPAs – read them here.

LPAs – Why are they important?

An LPA stands as a vital component within the process leading up to one’s passing, which is why it has an intersecting role within the broader framework of Will writing.

Having an LPA is important for several reasons:

Decision-making authority

It allows you to choose who will make important decisions on your behalf if you become unable to do so yourself. This provides peace of mind in knowing that your affairs will be managed by somebody you trust.

Personal wishes

An LPA ensures that your personal wishes, values and preferences are known and respected, even if you’re unable to communicate them directly.

Reduced stress for your loved ones

By appointing someone you trust as your attorney, you alleviate the burden on your loved ones, sparing them from potentially difficult decisions and disagreements as well as giving them confidence that they are doing right by you.

Other things you should know about LPAs

LPAs are very powerful legal documents and so it’s important to make sure that your attorneys will have the same control as you have, over your finances, investments and property. Alternatively, you can include restrictions in your LPAs.

If you have more than one attorney – as is recommended – there are a couple of different ways you can appoint them:

The first is jointly, which means they must only act together.
The second is jointly and severally, which means they can either act together or separately. Jointly and severally is usually recommended as it means if one of your attorneys is unable to act or has passed away, the other attorney(s) can continue to act on your behalf.

The authority granted to your chosen LPA ends when you pass away and responsibility shifts to your appointed Executor (in accordance with your Will). More about executors and their responsibilities here.

**What could happen if you don’t have an LPA in place?**

You are only able to put an LPA in place if you have mental capacity, which is why it’s advisable to do this sooner rather than later.

If you do not have valid LPAs in place at such a time when you have lost capacity or are unable to communicate your needs yourself, the local authority or friends/family may apply for a Deputyship Order on your behalf, and this may be someone you do not trust or want to burden with the responsibility.

Jargon-busting – navigating the legal lingo

Mental Capacity: the ability to make specific decisions at the time that it needs to be made.

Donor: the person making the power of attorney

Attorney: the person given the power to make decisions

Certificate provider: the person who will sign your LPA to confirm that you have mental capacity and are not under any undue influence or duress.

FAQs about LPAs

Q: Can I appoint anyone as my attorney(s)?

A: Yes, you can appoint anyone that is over the age of 18 and that you trust to be your attorney(s). Thid person should not be declared bankrupt.

You can even appoint a professional attorney such as a solicitor for your Property and Finances LPA.

Q: How long do LPAs take to register?

A: The court usually takes around 3 months to register an LPA.

Q: Can someone put LPAs in place on my behalf?

A: No, only you can put your LPAs in place as long as you have mental capacity.

Q: Can my LPAs only be used once I’ve lost capacity?

A: The Health and Welfare LPA can only be used by your attorney(s) once you have lost mental capacity. However, your Property and Finances LPA can be used by your attorney(s) whilst you still have mental capacity, if you wish for them to assist you.

Q: Can I revoke my LPAs or change my attorney(s)?

A: Yes, if you have mental capacity, you can revoke your LPAs and put new LPAs in place appointing different attorney(s).

Q: Can I use my LPAs abroad?

A: Possibly – each country has its own system, some countries may recognise and allow you to use your LPAs in that country however, some countries may require a different process.

Q: How should my attorney(s) make decisions?

A: You attorney(s) should always consider all options before making decisions to ensure they’re acting in your best interest in accordance with the Mental Capacity Act 2005

Q: Do I need a professional to say I have mental capacity?

A: Yes, your certificate provider must sign your LPAs to state that you have mental capacity. This must be a professional such as a solicitor or doctor, or someone who has personally known you for at least 2 years.

Will Writing series with Manak Solicitors so far

We’ve been working closely with Nosheen Bukhari, Wills & Probate Director at Manak Solicitors, to bring you this 4-part series that provides some clarity and education around writing a robust Will – an action that your future self (and your loved ones) will thank you for.

With this blog being the third instalment, you can catch up on part one and two below: