What are lasting powers of attorney, and why should I make them? 

Research suggests that four in five adults in the UK do not have a registered lasting power of attorney. The Office of the Public Guardian, the agency responsible for lasting powers of attorney, conducted a survey which suggests that 45% of people aged 45 and over did not even know what lasting powers of attorney are.  

What are lasting powers of attorney? 

There are two types of lasting power of attorney, one for your property and finances and one for your health and welfare. You can choose to make one type, or both.  

A lasting power of attorney for property and financial affairs gives your attorneys the power to make decisions in relation to your money and property. Examples of this include:  

• managing your bank account and investments;  

• paying your bills;  

• selling your home; and  

• claiming or discussing your pensions and benefits.  

Your attorneys can make financial decisions for you when you have capacity but with your consent, or if you lose your mental capacity.  

A lasting power of attorney for health and welfare gives your attorneys the power to make decisions in relation to health care. Examples of this include: 

• your daily routine, such as what you would wear, eat and drink;  

• in the event that you need care, whether this would be at home or in a care home;  

• giving or refusing consent to life sustaining treatment; and  

• any other routine medical care decisions.  

Your attorneys can only make decisions under a health lasting power of attorney if you lose your mental capacity.  

Under both types of lasting power of attorney, you are able to give specific guidance to your attorneys in relation to any potential decisions they may make on your behalf.  

The benefits of making lasting powers of attorney 

Making a lasting power of attorney is a relatively straightforward process and there are benefits of making them.   

1. You have control over who is appointed as your attorney and can give them guidance  

When making a lasting power of attorney you are handpicking your attorney(s) because you trust them to follow your wishes and act in your best interests. You can provide them with guidance on deeply personal matters such as life sustaining treatment, care decisions and what should happen with your home. If you do not make a lasting power of attorney, and you lose your mental capacity to make your own decisions, the Court of Protection will appoint a deputy to make decisions on your behalf under a Deputyship Order.  

2. The alternative is more costly  

If you do not have registered lasting powers of attorney in place, and you lose your mental capacity to make your own decisions, the Court of Protection will need to appoint a deputy to make decisions on your behalf under a Deputyship Order. This is significantly more costly, both in terms of legal fees and court fees, and will take at least between four to six months, sometimes up to 12 months in more complex situations. During this time, there is nobody who can legally make decisions on your behalf.  

3. Clarity and peace of mind 

Once you make lasting powers of attorney, and they are registered at the Office of the Public Guardian, you will have peace of mind knowing that should the worst happen, you have trusted attorneys to make decisions. Not only is this peace of mind for you, but for your family and attorneys as well.   

4. Protection  

Your attorneys have a duty to act in your best interests and are held to a strict standard by the Office of the Public Guardian. If your attorney is found to be breaching their duties, for example because they make decisions that are found not to be in your best interests, the Office of the Public Guardian can investigate and inform other agencies such as social services or the police.  

Some important points to note 

To make a lasting power of attorney, you need to be over the age of 18 and have mental capacity to do so.  

Your attorneys should be people who you trust implicitly to make decisions on your behalf, as if it were you making them. You can have different attorneys for your financial and health decisions, however if you do so, they will need to work well together.  

Before your attorneys can use your lasting powers of attorney, they need to be registered at the Office of the Public Guardian. There is a registration fee of £92 per lasting power of attorney unless an exemption or reduction applies. The Office of the Public Guardian state that this registration process can take between 8 to 10 weeks, or sometimes up to 20 weeks where there are additional considerations.  

Conclusion  

There is a common misconception that lasting powers of attorney are for the elderly only. While it is not pleasant to think of becoming too unwell to handle your own affairs or make your own decisions, life is unpredictable, and it is important to forward plan to ensure that your wishes are followed by people you trust.