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Lasting Powers of Attorney – your clients’ questions answered by legal expert

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By Samantha Warner, Associate at Winckworth Sherwood

There has been much talk in the media in recent months about Lasting Powers of Attorney (LPAs) not least following Kate Garraway’s frank interviews detailing the difficulties she faced dealing with the family finances while her husband Derek was in hospital with Covid-19.  As solicitors we see first-hand how difficult it can be for families where there are no LPAs in place and are keen to raise even greater awareness of these incredibly useful documents and dispel some common myths.

We have therefore provided below answers to some of the questions that we are most frequently asked by clients when LPAs are being considered: 

1)    I heard that there are two types of LPA – what is the difference?

Answer: There are indeed two types of LPA.  The Property and Financial Affairs LPA allows the person making the LPA to appoint an attorney or attorneys to manage their finances and to sign financial documents on their behalf.  The document also gives your attorneys the power to manage any property that you own which could include renting it out or selling it if required.  The Health and Welfare LPA is equally important but it is a separate document that allows your attorneys to make health and care decisions on your behalf such as where you live, the care you receive and whether you should receive life-sustaining treatment.

Although both types of LPA can be used by your attorneys if you lose the mental capacity to make a particular decision, one major difference between the two documents is that the Property and Financial Affairs LPA can also be used, , while you retain the ability to make your own decisions .  This can be really useful if you have an extended stay away from home or if you become physically infirm.

You can also make more than one Property and Financial Affairs LPA.  Some business owners, for example, make one LPA to cover their personal affairs and another to cover their business interests.  This is a little more complicated than the standard procedure and there may be other considerations, so a lot of care is required in their drafting to avoid issues.

2)    Who should I appoint as my attorney(s) and what happens if I change my mind?

Answer:  Your solicitor will explain the kinds of decisions your attorneys will need to make, which should help you to decide who would be best placed to take on the role.  However, the simple (but no less important) answer is to choose people you trust. This is often a family member but could also be a friend, business partner or a trusted adviser.

We will usually advise you to appoint more than one attorney and/or replacement attorneys to futureproof your LPAs in case your first choice of attorney loses capacity themselves or passes away.  If you change your mind about who you have appointed and you still have capacity to make your own decisions, you can either remove the unwanted attorney from the LPA or revoke the existing LPA entirely and make a new one.  

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