A Lasting Power of Attorney (LPA) is an extremely powerful document. Under an LPA, any person appointed to make decisions on your behalf can potentially exercise a great deal of power over your finances, property, health and welfare.
This can include life-changing decisions about, for example, where you will live and what care you will receive. Sadly, in some instances, this can lead to acts of mistreatment, financial misuse and fraud.
As such, it is imperative that you exercise a high degree of caution when deciding who to appoint as an attorney, ensuring they can be trusted to act in your best interests at all times.
It is also important to consider the nature and extent of the powers that you grant to any given individual, and whether safeguards should be put in place to prevent them from acting alone on important decisions.
What to consider when appointing an attorney
An LPA refers to the appointment of another person to make decisions on your behalf in the event that you lose the mental capacity to do so yourself. It is possible, however, to appoint more than one person to act as an attorney.
Further, if you appoint more than one person, you can elect that they make decisions either jointly or independently. In this way, you can make provision that any life-changing decisions cannot be taken by any one individual.
There are two different types of Lasting Power of Attorney: one covering property and financial affairs, and the other health and welfare. Many donors choose to create both types of LPA, often appointing different attorneys to make different kinds of decisions.
Under either type of LPA it is possible to restrict the scope of an individual’s power to specific tasks. By listing all the matters for which that person will be authorised to act on your behalf, you can limit the power of any given individual to a single type of activity or process, such as paying your bills.
Finally, the power of attorney can be drafted in such a way so as to provide third party oversight over certain decisions. By way of example, you could appoint just one of your adult children as an attorney, albeit subject to them providing a written account of their actions to a nominated financial advisor.
Who to appoint as an attorney under an LPA
Given that an LPA allows the appointed person acting on your behalf a significant amount of power and responsibility over your affairs, you will not only need to feel confident that any such person will make decisions that are in your best interests, but that they are competent and able to do so.
Typically, a donor will select a family member, a close friend or a professional such as a solicitor. Needless to say, anyone you appoint must be aged 18 or over and have the mental capacity to make their own decisions. You should also consider whether that person has the maturity and expertise, for example, to make any complicated financial decisions on your behalf.
If you appoint someone close to you, you may want to consider how they currently handle their own affairs and how happy they will be to make the necessary decisions for you. You can, however, lighten their burden by setting out in writing your express wishes in relation to certain eventualities.
It is also possible to elect in advance whether or not you want your attorney(s), or your doctors, to decide if you receive life-sustaining treatment.
You should also only appoint someone who is appropriately placed to act on your behalf, both in terms of their time and geographical location.
When to seek specialist LPA legal advice
In the event that you are thinking about setting up a Lasting Power of Attorney, it is always best to seek specialist legal advice to guide you through the process, not least in relation to the nature and extent of the powers you are proposing to grant to any given individual.
Your legal adviser can help you to create an LPA that offers additional layers of protection, in this way ensuring that any important decisions made on your behalf, if and when the need arises, will be taken by those that you trust most.
Legal disclaimer
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
