Lasting Power of Attorney

What is a Lasting Power of Attorney?

A lasting power of attorney (or LPA) is a document that outlines the decisions you would like your nominated attorney to make on your behalf, if you were to lose mental capacity in the future.

There are two types of lasting powers of attorney:

• Health and welfare lasting power of attorney: this gives your attorney power to make decisions affecting your personal welfare such as where you live.
• Property and financial affairs lasting power of attorney: this gives your attorney power to manage your finances.

You can only make a lasting power of attorney whilst you have mental capacity. If you lack mental capacity, but don’t have a lasting power of attorney in place, then a friend or relative can apply to the Court of Protection to apply to become a deputy to make decisions on your behalf. However, drawing up an LPA is a quicker, cheaper process than applying to become a deputy.

How Clarke Willmott can help

Drafting a lasting power of attorney

There are a number of steps to creating a valid lasting power of attorney. We can guide you through the process and help you draw up a lasting power of attorney document that accurately reflects your wishes. This includes:

• Helping you understand the different types of powers that can be given to attorneys through a lasting power of attorney
• Advising you on how best to structure your lasting power of attorney document
• Helping you choose the right attorney(s) for you
• Drafting the lasting power of attorney including bespoke clauses to reflect your personal situation
• Acting as a certificate provider certifying that you have understood what your lasting power of attorney entails
• Helping your nominated attorney(s) complete their paperwork – confirming they are willing to act for you
• Registering your lasting power of attorney with the Office of the Public Guardian

Help your attorneys understand what is meant by being appointed

• We would be happy to advise your attorneys on what an attorney can and cannot do
• We can suggest possible things to look out for, such as how to deal with disputes with friends or relatives concerning the power of attorney
• We would advocate good record keeping and offer advice into the preparation of financial accounts
• If necessary, explain to the attorney how we can help to apply for additional powers through the Court of Protection; including authority to make gifts.

Professional Attorney services

We can act as a professional attorney through our trust corporation, Clarke Willmott Trust Corporation Limited. When you are appointing attorneys it is worth considering whether to appoint a trust corporation instead of, or as a replacement for, an attorney. This can avoid the costs and inconvenience of replacing an attorney if they fall ill or die.

Additional advantages for using a professional attorney are the trust corporation’s expertise in handling lasting powers of attorney and their ability to respond quickly.

Powers of attorney and foreign assets

If you have assets abroad, there is no guarantee your UK lasting power of attorney will be recognised in the country where your assets are held. Even if it is, further action may be required, such as translation or the addition of an ‘apostille’ to confirm its authenticity.

We can liaise with lawyers in other jurisdictions at a time where you have mental capacity and take their view on the best course of action as to how best to protect your foreign assets. It may be that a UK lasting power of attorney would suffice, or, it may be advisable for you to grant a similar power in the jurisdiction in which your assets are held.

Overseas powers of attorney in the UK

If a power of attorney was created in another jurisdiction, it may not automatically be accepted in England and Wales. In order to act on behalf of the person who created the overseas power of attorney, you will need to apply to the Court of Protection for official confirmation that the power of attorney is valid under English law.

Our dedicated specialist team of Court of Protection solicitors can guide you this process from start to finish and advise you on any other aspect of applying a foreign power of attorney under English law.

Contact our lasting power of attorney specialists

For advice about making a lasting power of attorney, call our specialist team now on 0800 652 8025 or contact us online. Your initial consultation is free. We have seven offices based across the country in London, Southampton, Manchester, Cardiff, Taunton, Birmingham and Bristol.

Helpful factsheets

• Factsheet: Lasting Power of Attorney – an overview
• Factsheet: Lasting Power of Attorney or Deputy – making the right choice
• Factsheet: Capacity to make a Lasting Power of Attorney