A Lasting Power of Attorney is an important document. It allows you (the donor/person making the document) to appoint others, known as your attorneys, to make decisions about your health and welfare and/or finances should you be unable to do so yourself.
It follows therefore, that those appointed as your attorneys have a high level of responsibility when carrying out their role and are granted with significant rights in your favour. Because of this, we believe that it is valuable for every person thinking of making a Lasting Power of Attorney to fully understand these rights and responsibilities being granted to their family and/or friends.
Rights granted under a Financial Lasting Power of Attorney
A Financial Lasting Power of Attorney can be made by any person, over the age of 18, who has the requisite mental capacity to understand how the document works and what rights they are giving to their attorneys. If these requirements are satisfied, the Lasting Power of Attorney can only then be used by your attorneys once the document is registered by the Office of the Public Guardian. The fee currently payable to the Office of the Public Guardian for registration is £82 per document.
Following the registration of a Financial Lasting Power of Attorney, your attorneys will then be able to make decisions about the following, either immediately or only once you have lost mental capacity (depending on how your LPA is drafted):
- Paying bills and other expenses. This could include your utility bills, council tax, professional service bills, shopping bills etc.
- Opening, closing, and operating any of your bank, investment or building society accounts.
- Buying and selling your home or other investment properties.
- Maintaining and repairing your home.
- Making any tax returns on your behalf and generally dealing with any tax issues from HMRC.
- Claiming any state benefits which you may be eligible for depending on your circumstances.
- Purchasing items you require for day to day life.
Please note that the above list is not exhaustive and there could be others matters that your attorneys can make decisions on.
Rights granted under a Health Lasting Power of Attorney
As with a Property and Financial Lasting Power of Attorney, a Health and Welfare Lasting Power of Attorney can also only be made by a person who is over the age of 18 and has the requisite mental capacity. If these requirements are satisfied, a registered Health and Welfare Lasting Power of Attorney will only ever come into effect if you are no longer mentally able to make the decisions for yourself. At this point, your attorneys will then have the right to make decisions about the following:
- Day to day matters such as your diet, daily routine, clothing, and cosmetic treatments such as hair appointments.
- Moving into residential housing or a care home and which home is most suitable for you.
- Giving or refusing consent to different types of health care including treatments, surgery, or medicine.
- Whether it would be best and more suitable for you to stay in your own home and receive help and support from social services.
When it comes to taking decisions about life sustaining treatment, your attorneys can only do so if you have given them the authority in your Lasting Power of Attorney. You therefore have the option when making this power of attorney to decide whether you would or would not like your attorneys to give or refuse consent to such treatment. This choice is extremely important and so should be considered carefully.
Again, please note that the above list is not exhaustive.
Can I have an input in how my attorneys exercise their decisions?
The answer to the above question is simply, yes.
When making a Lasting Power of Attorney for financial or health decisions, you have the option to include preferences and instructions to your attorneys about how you would like them to make certain decisions. A preference would simply set out how you’d prefer your attorneys to make a decision and an instruction is a little stronger in that they must be followed by your attorneys. This section of the Lasting Power of Attorney therefore gives you some input into how you would like your attorneys to act on your behalf.
Responsibilities of your attorneys under both a Health and Financial Lasting Power of Attorney
Although your attorneys can be granted considerable rights under a Lasting Power of Attorney, they are, at the same time, responsible for acting in your best interests. Lasting Powers of Attorney are governed by the Mental Capacity Act 2005 and so your attorneys must have regard for this Act and use it to assist them when making decisions. You can find the full code of practice here.
In summary, the Mental Capacity Act requires all attorneys to follow the below principles:
- Your attorneys must assume that you can make your own decisions unless it has been established that you cannot.
- Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps available to help you make the decision for yourself and they can only treat you as unable if they have not succeeded in helping you make a decision through those steps.
- They cannot treat you as unable to make a decision simply because you make an unwise decision.
- Before your attorneys make a decision, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom, but which achieves the same purpose.
- If you were unable to make decisions for yourself, your attorneys must act and make decisions in your best interests.
If you would like to learn more about Lasting Powers of Attorney, please contact us on 01244 312306 to speak with one of our specialist Private Client Solicitors.
