What is a Lasting Power of Attorney

 A Lasting Power of Attorney is a legal document  giving by one person to another to take care of their personal affairs and/or welfare. 

This can include making financial decisions, paying bills, making decisions about their home and property as well as making treatment and care decisions. In the absence of a power of attorney and in the event that you are unable to make decisions for yourself, your loved ones would have to apply for a deputyship order through the court. You will also not have any say as to who applies for the deputyship order. Creating a power of attorney in place in advance of a situation where you are unable to make decisions for yourself, can give assurance that your affairs and welfare will be looked after by someone you trust. 

There are two types of power of attorney arrangements to consider; one for health and welfare, and another for property and finance.

A Health and Welfare Lasting Power of Attorney allows your appointed attorney(s) to make decisions on healthcare and medical treatments as well as care such as nursing home choices and can consent or refuse treatment on your behalf, giving you the opportunity to have a degree of control over your future care where you are not able to make decisions yourself. Your attorney(s) are able to act as soon as the Lasting Power of Attorney has been registered. Whilst you still have mental capacity your named attorney(s) can only act with your consent.   If however, you later lose mental capacity your attorney(s) can continue to act on your behalf for all decisions covered by your Lasting Power of Attorney.

Your attorney must always act in your best interests at all times, and in cases of end of life treatment should include family and carers when making decisions.

A Property and Financial Affairs Lasting Power of Attorney gives your chosen attorney(s) the authority to deal with your finances and property matters. They can also manage any benefits you might be in receipt of or entitled to. The attorney is under obligation only to act in your best interests at all times, and various safeguards exist to ensure this. Financial powers of attorney can take effect immediately, or you can state in the terms that they should begin when you lose capacity.

You can determine the scope of power your attorney should have when you are setting up a power of attorney, and you may wish to consult your family or your doctor before making one. It is highly recommended to take legal advice from a power of attorney specialist before such a document is prepared, to avoid any potential difficulties about the exact wishes of the person granting the power of attorney. Our Will & Estate Planning Consultants will guide you through the entire process to ensure your wishes are met and that you are well informed about every detail.

If you lose mental capacity without a power of attorney in place, your loved ones will need to apply through court for a deputyship order to make decisions for you, something that is often a long and expensive process. By nominating an attorney, you can choose someone you can trust to take care of your affairs and wellbeing, giving you peace of mind in the knowledge that your wishes and best interests will be taken care of.

The difference between the Living Will (or Advance Directive) and a Lasting Power of Attorney is that the Living Will can include decisions you have made yourself on how you would like to be treated. The Welfare Power of Attorney’s only function is to appoint someone else to make decisions about your welfare for you. The Living Will is also limited to medical treatment, however, the Lasting Power of Attorney can include a whole range of personal decisions. It is possible to have both a Lasting Power of Attorney and a Living Will, provided the two don’t contradict each other, and you can if you wish, incorporate terms for a Living Will into a Lasting Power of Attorney to specify your wishes for consent or refusal to treatment. If it is found that an existing Living Will and Lasting Power of Attorney do contradict each other, the most recent of the two will be taken into consideration, making the older document invalid.