Lasting Powers of Attorney – The increasing importance of Health and Welfare
Anyone who has recently tried to assist a friend or family member with their financial affairs, or with arranging the provision of care, will almost certainly have been asked whether they have “power of Attorney”. In other words, has the person they are trying to help signed a document formally authorising them to do so.
This document is known as a Lasting Power of Attorney (LPA). The person making the document is known as the Donor and they may appoint one or more Attorneys to help them. There are two types of LPA. The first deals with property and financial affairs, which includes your home, money, bills and so on. The second deals with health and welfare, which covers more or less everything else – for example where and with whom you should live, what kind of care you should receive and what type of medical treatment you should receive.
An LPA gives your Attorneys power to make decisions and act on your behalf if and when you become unable to do so. A health & welfare LPA only comes into force when the Donor loses the mental capacity to make their own decisions (due to dementia, for example). A property and financial affairs LPA may also be used when the Donor has not yet lost mental capacity but simply wishes his Attorneys to act on his behalf (perhaps due to physical incapacity). Both documents must be registered with the Office of the Public Guardian before they may be used, for which there is usually a fee of £82 per document.
It used to be felt that, where someone had close family, an LPA for health and welfare was not strictly necessary, because medical professionals, social services and others would involve the family in any decision-making. However it seems that, as decisions regarding care and medical treatment become more and more complex, LPAs are being regularly requested. The two types of LPA now appear to have more or less equal importance.
The decision as to who the Donor should appoint as their Attorney or Attorneys is an extremely important one. An Attorney needs to be someone you trust implicitly to act in your best interests, within the letter of the law and, subject to these constraints, in accordance with your general wishes. You should remember that the appointment of one or more family members as Attorneys may cause difficulties with others who have not been appointed.
The appointment of friends or neighbours to the exclusion of family members may leave the Attorneys open to accusations of coercing you into making the LPA or of abusing their role (even if they are able to prove otherwise). Sometime these accusations may turn out to be true.
The role of an Attorney can clearly be quite onerous. If in doubt, always seek advice and remember that it is possible to appoint a professional, such as a Solicitor or Financial Advisor, to be at least one of your Attorneys.
Catherine is a specialist lawyer working in our Wills, Trusts and Probate Department.
Catherine began her legal career as a secretary with a large regional firm of solicitors before undertaking her legal training through distance learning.
She became a Graduate of the Chartered Institute of Legal Executives in 1999 before moving on to work, mostly as a locum, in firms all over East Anglia.
She joined Bates Wells & Braithwaite in 2016 and specialises in Wills, Powers of Attorney, Estate Administration, Court of Protection work and elderly client advice.
In her spare time, Catherine enjoys classical singing, gardening and walking with her dog.