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We are experienced in drafting a wide range of powers of attorney for all purposes. Our solicitors can help cater for an individual losing capacity, deal with a specific transaction, or assist for business purposes.

In our experience, the power of attorney required most often is Lasting Power of Attorney. Speak to an experienced Hugh James solicitor today for the information and legal guidance you need.

What is a lasting power of attorney?

A Lasting Power of Attorney (LPA) is a legal document that enables individuals (known as ‘the donor’ in this process) to appoint someone to make decisions about their welfare, money or property, either now or in the future.

LPAs are important to legislate for the possibility of mental incapacity, usually caused by serious illness or accident, preventing an individual from being able to deal with their day-to-day decisions. These include complicated financial and health decisions, and the terms are best understood with help from a power of attorney solicitor. We advise that everybody should consider making LPAs, irrespective of their age or health.

There are two different types of LPAs:

Health and Welfare LPAs
Property and Financial Affairs LPAs

A Health and Welfare LPA enables individuals to choose someone they trust to make decisions for them relating to their health and personal welfare, such as their living arrangements or medical treatment, in the event of them becoming mentally incapable. A Health and Welfare LPA also enables those individuals to empower their attorneys to give or refuse life-sustaining treatment on their behalf.

Such an LPA can only be used once it has been registered at the Office of the Public Guardian (OPG) and the individual concerned has already become mentally incapable of making their own decisions. Consulting a Lasting Power of Attorney solicitor could simplify this process.

A Property and Financial Affairs LPA enables an individual to appoint someone to manage their property and financial affairs once they are no longer physically able or lack the mental capacity to do so.

As with the Health and Welfare LPA, a Property and Financial Affairs LPA can only be used once the form has been registered at the OPG. However, this can be used even if the individual still has mental capacity.

Who should make a lasting power attorney?

In our view, everybody. Anyone can potentially become physically or mentally incapable following an illness or accident, regardless of age or circumstances.

A will only operates after death, so it is a wise precaution to appoint attorneys you trust to make important decisions on your behalf should the need arise during your lifetime.

Lots of our clients seek advice from our Lasting Power of Attorney solicitors at the same time as making their wills, giving them peace of mind that they have made plans for after their death and during their lifetime.

Who can I choose as my attorney?

In theory, anyone who is over 18 can be an attorney. In the case of an attorney appointed to a Property and Financial Affairs LPA, however, they must not be bankrupt.

It is crucial to choose someone who can be trusted implicitly when appointing your attorney or attorneys. This is often one or more family members, trusted friends or professional advisers, but if you’re unsure, it is recommended to seek advice from a power of attorney lawyer to prevent any rejections, delays or misunderstandings.

If more than one attorney is appointed, they can be appointed “jointly” and do everything together, or “jointly and severally” so they can act together or individually on all issues.

How can Hugh James’ lasting power of attorney solicitors help?

While the process of creating a valid LPA might seem straightforward, rushing paperwork without prudence or professional advice could result in expensive consequences.

With tailored advice from our experienced Lasting Power of Attorney solicitors, we can help you through the process and reduce the chances of things going wrong. We can advise you on who you should choose as your attorneys, make sure that they understand their duties, and explain in detail the different ways attorneys can be authorised to make decisions.

Furthermore, our team of Lasting Power of Attorney lawyers could also help you nominate replacement attorneys or prevent the legitimacy of your Lasting Power of Attorney from being challenged or rejected, either by a medical professional or by the OPG.

Get in touch today if you have any questions or make an enquiry with our power of attorney solicitors.

Key contact

Matthew Evans

Partner

Matthew is a partner and heads up the firm’s private wealth offering. He is responsible for the development, implementation and long-term strategy of the team.

Matthew has a UK-wide reputation in the field of contentious probate, recognised by his clients and peers in the leading legal directories.

If an individual loses capacity without a previously appointed attorney, it may be necessary to make an application to the Court of Protection for a deputy to be appointed. Read more about our Court of Protection team or consult one of our power of attorney solicitors to check if you can still avoid court.

An LPA only takes effect once it has been registered with the OPG.

It can be registered whenever you choose, but if it is registered immediately after it has been completed, it is simply stored safely and only put into use once it is needed.

Registration itself does not mean that the individual in question has lost capacity. They can carry on making decisions in the usual way until capacity is lost. The important thing to remember is that an LPA cannot be used at all until it is registered.

Some of our clients anticipate the need to register an LPA once they’ve been diagnosed with an illness or started living in care. Our team of experienced Lasting Power of Attorney solicitors ensure the process is initiated without disturbing your comfort or peace of mind as you prepare for the future.

An LPA can be cancelled by the donor at any point while they retain capacity to do so. This must be done by way of formal revocation and not by simply altering the original LPA.

If an individual’s attorney is their spouse or civil partner, their appointment will be ended by a divorce, dissolution or annulment of the marriage or civil partnership, unless it has been expressly stated otherwise in the LPA.

An attorney’s precise powers will depend upon the type of LPA that has been set up and whether any restrictions on their powers have been included in the document. In general, an attorney must:

Make decisions that are in the donor’s best interests
Only make decisions they are enabled to by the terms of the LPA
Not delegate authority they have been given to others unless authorised to do so
Maintain the donor’s confidentiality
There are some things the attorney cannot do, such as:

Sign a will on behalf of the donor

Act in circumstances in which their power is expressly limited or forbidden by the donor
Make gifts on the donor’s behalf, except in limited circumstances
Make decisions that are not in the donor’s best interests
Make decisions using a Health and Welfare LPA unless the donor has lost mental capacity
Consent to the donor’s marriage or divorce

Our team of power of attorney solicitors can provide a more detailed understanding of these terms and responsibilities upon consultation.

A completed form needs to be sent to the OPG, along with the requisite court fee. The fee is currently £82 per document, although some people may qualify for an exemption.

In our experience, it can take 10-12 weeks for the registration process to be completed by the OPG. Taking professional advice and filling out the forms with the help of a power of attorney lawyer could prevent problems later.

Yes, it is possible to object to the registration of an LPA for a loved one. To do this you will need to lodge an application with the OPG and we would suggest you obtain legal advice before doing so.

Enduring Power of Attorneys (EPAs) were prevalent before October 2007, after which they were replaced by LPAs.

EPAs, like a Property and Financial Affairs LPA, enabled individuals to make decisions on behalf of individuals in respect of property and financial affairs.

Although new EPAs cannot be created, those that were executed prior to October 2007 can still be used. An EPA only needs to be registered if the donor has lost (or is losing) mental capacity and can still be used before that time, assuming there is no restriction within to the contrary.

Find out more about our power of attorney solicitors

We know it can be difficult to choose a legal team to help you and your family through the challenges of critical care and end-of-life preparations. The confidence our clients have in our service is clear from our ‘Excellent’ rating on Trustpilot, reflecting our aim to go above and beyond your expectations at this time.

Call us on 029 2267 5980 or fill in an enquiry form if you have any further questions about how our Lasting Power of Attorney solicitors can help you.

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