Lasting Power of Attorney

Power of Attorney

When contemplating client’s financial affairs, we always recommend that a client puts in place a Power of Attorney (POA).

Today these are known as Lasting POA (LPOA) as opposed to Enduring Power of Attorney (EPOA). LPOA’s replaced EPOA’s from 1 October 2007, although EPOA’s made before that time are still valid.

This article covers some frequently asked questions in relation to LPOAs.


What is a LPOA?

Essentially it is a legal document in which a person (the donor) gives power to another person (the attorney) to manage their affairs including:

1.       Decision making over financial and property affairs – including operating bank accounts, making investment decisions, signing tax returns or property transactions.

2.       The ability to make decisions about their health and welfare – including what to wear, medical care or moving into a care home.

These are the two types of LPOA, which deal with the above matters separately. You can choose to make one type or both.


Why is it important?

It is important if the donor loses the ability to manage their affairs. If a LPOA is in place, then the attorney can take over the affairs and pay bills for example.


Can’t my spouse look after my affairs without the LPOA?

Unfortunately not. Spouses do not automatically have any legal authority to deal with the affairs of the other.


What happens if I do not have a LPOA?

Your assets will be frozen until approval is received from the Court of Protection (the Court responsible for protecting people who lack mental capacity) has appointed someone to look after those assets and the affairs.


Who can be the Attorney?

The Attorney must be an adult and could be the donor’s spouse or adult children of the donor.

It could also be anyone else that the donor trusts completely presuming that they have the knowledge, experience and ability to manage the affairs.

The donor can also appoint more than one Attorney.


What are the responsibilities of the Attorney?

The Attorney must act in the donor’s best interests, take into account the donor’s wishes and not take advantage of the donor.

The Attorney must not delegate any duties to a third party and must not charge for their time, unless agreed with the donor.

The Attorney cannot make a Will for the donor. The donor must do this, whilst they have capacity to do so.


When is the LPOA effective from?

It is effective from the point at which it is registered with the Office of the Public Guardian which is a Government agency. It is therefore advisable to register the LPOA as soon as possible after it is signed.


What happens when the donor dies?

The LPOA ends when the donor dies. The Attorney(s) should contact the Office of the Public Guardian as soon as possible with copies of the death certificate and LPOA.


I already have an EPOA, do I need a LPOA?

Possibly. The EPOA only covers property and financial affairs, so it would be advisable to make a LPOA to cover health and welfare affairs.


Can a LPOA be withdrawn?

Yes, as long as you still have the mental capacity to deal with your affairs.


How can Clive Owen & Co LLP help?

As one of the region’s leading firms of personal advisers, we have strong connections with the best legal firms in the North East and Yorkshire.

In addition, we are highly experienced in ensuring that Wills are drafted correctly and that inheritance tax liabilities are minimised.

Call us today to find out more.