A lasting power of attorney is a powerful legal document, and it is worth understanding the law behind it before you make one. Clients who come to our lasting power of attorney solicitors in Liverpool often know they ought to have one, but are less clear about what it involves, when it takes effect, and what the law requires of the people they appoint. This article sets out the legal framework in plain terms, so you can make your decisions from an informed position rather than simply signing a form.
To speak to our experts, please call us free of charge on 0800 988 3674 or Make A Free Online Enquiry.
What Law Governs Lasting Powers Of Attorney?
Lasting powers of attorney were introduced by the Mental Capacity Act 2005, which also created the Court of Protection. The Act rests on an important set of principles, including that a person is assumed to have capacity unless it is established otherwise, and they are not to be treated as unable to make a decision merely because it seems unwise. Anything done on behalf of someone who lacks capacity must be in their best interests and must be the option that least restricts their rights and freedom.
Those principles run through the operation of an LPA. The document does not hand over unlimited control. It appoints someone to act within a legal framework designed to protect you.
What Are The Two Types Of Lasting Power Of Attorney?
The law provides for two separate documents, and they work differently.
A property and financial affairs LPA covers money and assets, including bank accounts, bills, benefits, pensions, investments, and the sale of property. Once registered, it can be used while you still have capacity if you wish, which many people find helpful if illness or travel makes managing their own affairs difficult.
A health and welfare LPA covers decisions about medical treatment, care arrangements, and where you live. This one operates differently, as it can only be used once you have lost the capacity to make the decision in question for yourself. It can also be extended to give your attorney authority over life sustaining treatment, but only if you expressly state that in the document.
Many people make both types of LPA, since financial authority alone does not allow anyone to speak for you about your care.
What Does Mental Capacity Mean In This Context?
Capacity is decision specific and time specific. The question is not whether someone is generally capable, but whether they can make the particular decision at the particular moment. Under the Act, a person lacks capacity if an impairment of the mind or brain means they cannot understand the relevant information, retain it, weigh it up, or communicate their decision.
This matters for one central reason. You can only make an LPA while you have the capacity to understand what you are creating and what powers you are granting. Once capacity is lost, the opportunity has gone, and your family would instead have to apply to the Court of Protection for a deputyship, which is more expensive and considerably more time consuming. Part of a solicitor’s role is to satisfy themselves that you have capacity at the time you give instructions, which also helps protect the document against challenge later.
Why Must An LPA Be Registered Before It Can Be Used?
An LPA has no legal effect until it is registered with the Office of the Public Guardian. Registration involves notifying anyone you have named to be told, allowing a period in which objections can be raised, and having the document checked. Only once registration is complete can your attorney rely on it.
Registration takes time, which is why it is unwise to leave an LPA sitting unregistered until a crisis arrives. Errors in the form are a common cause of applications being rejected or delayed, and a rejected application means starting parts of the process again. We handle registration for you and make sure the document is in order before it is submitted.
What Legal Duties Does An Attorney Have?
The people you appoint take on real obligations. They must act in your best interests, follow the principles of the Mental Capacity Act, and have regard to the statutory Code of Practice. They must keep your money separate from their own, keep proper records, and avoid putting themselves in a position where their interests conflict with yours. They cannot generally make gifts from your funds beyond limited customary amounts, and they cannot delegate their role.
The Office of the Public Guardian supervises attorneys and can investigate concerns, and the Court of Protection has power to intervene and remove an attorney who is not acting properly. Understanding these duties is part of choosing the right person, and we will explain them clearly to both you and those you intend to appoint.
Why Use A Solicitor Rather Than Completing The Forms Yourself?
It is possible to make an LPA without legal help, but the document is one of the most significant you will ever sign, and mistakes carry consequences. Beyond the risk of rejection at registration, there are choices within the form that have real legal effect, such as whether attorneys act jointly or jointly and severally, whether to appoint replacements, and what instructions or preferences to include. Wording these poorly can leave your attorneys unable to act when you need them most.
A solicitor also brings independence. Where family circumstances are complicated, or where there is any prospect of the document being questioned, having it prepared professionally and with a proper record of your instructions gives it considerably more force.
How Can Bartletts In Liverpool Help?
Our wills and probate team in Liverpool advises on lasting powers of attorney regularly, and we can guide you through every stage, from deciding who should act for you to preparing the document, and ensuring it is properly registered with the Office of the Public Guardian. Where an LPA is not possible because capacity has already been lost, our specialists can advise on Court of Protection applications instead.
We offer this service at a low fixed fee with a free, no obligation quotation, so you know the cost before instructing us, and our solicitors can visit you at home if that is easier.
To speak to our experts please call us free of charge on 0800 988 3674 or Make A Free Online Enquiry.
