What is a Lasting Power of Attorney?

Nobody likes to think about the realities of old age, or about potential accidents or illnesses. But the truth is that life is dangerous, and each of us could fall ill or suffer an accident at any time. Lasting Power of Attorney is one way that we can all help to plan for this.

Losing your ability to make decisions for yourself is a scary possibility. But the thought of those decisions being made in a way that you would not have chosen is, perhaps, even worse. Lasting Power of Attorney provides us all with a simple way of ensuring that, if we are no longer capable of making decisions, it will be a trusted friend or family member who will take responsibility instead.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a powerful legal document that allows an individual to nominate someone to make decisions on their behalf. This individual is known as an attorney.

Lasting Power of Attorney is useful for those who want to ensure that their wishes will be met if a time comes when they are no longer capable of making decisions by themselves.

Why would I use a Lasting Power of Attorney?

A Lasting Power of Attorney is an excellent way to plan for the future. None of us likes to think about the worst case scenario, but it is perfectly possible that at some point in our lives we will no longer be mentally capable of making decisions about things like money or our own welfare. Lasting Power of Attorney lets you nominate a trusted person to make those decisions for you.

It is also considered to be a very safe way of planning (and therefore giving yourself peace of mind). An LPA must be registered with the Office of the Public Guardian, and there are very strict rules regarding the way in which they are made and the points at which they can be used. Nominated attorneys are legally obliged to act in the best interest of the person who made the LPA.

What are the two types?

There are two separate types of Lasting Power of Attorney. Each of these types has a distinct set of uses.

The health and welfare Lasting Power of Attorney is used by those who wish to nominate someone to make decisions regarding their medical treatment. This type can only be used once the individual who has made the LPA is considered to be no longer capable of making those decisions themselves.

The property and financial affairs Lasting Power of Attorney is used by those who want someone to make financial decisions for them. These decisions could take a number of different forms. For example, the nominated attorney might decide whether or not to sell shares, or how to allocate money in order to ensure that bills are paid.

In contrast with the health and welfare LPA, a property and financial affairs LPA can be used at any time – even if you still have the mental capacity to make decisions for yourself. Alternatively, you can stipulate that the LPA only be used once you are no longer capable of making those decisions.

How do I make a Lasting Power of Attorney?

It is intended that individuals should be able to make an LPA without expensive legal help. You will need to complete two forms: LPA001, the notice of intention to apply, and LPA002, the application to register an LPA.

The purpose of LPA001 is to notify specific interested parties of your intention to make a Lasting Power of Attorney. These individuals will have six weeks to object to the LPA if they have concerns.

Provided there are no objections, LPA002 can be used to request that the Office of the Public Guardian register the LPA. It is important to note that there is a waiting list for registration. The time can fluctuate significantly, but you should expect to wait at least 12 weeks.

Both LPA001 and LPA002 can be downloaded from the Ministry of Justice website.

The forms designed to be simple to complete, but if you are confused you should always seek advice before continuing.

What about Enduring Power of Attorney?

Lasting Power of Attorney replaced the Enduring Power of Attorney on 1 October 2007. Enduring Powers of Attorney made before this date are still legally valid.

If you are in any doubt about your legal position with regard to Lasting Power of Attorney or Enduring Power of Attorney, you should contact the Office of the Public Guardian or seek independent legal advice.