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  • Chloë Jane Fawcett LLB (Hons), DPLP

Types of Lasting Power of Attorney

What is a Lasting Power of Attorney (LPAs)?

A Lasting Power of Attorney is a legal, living document which allows you (the donor) to appoint trusted people to act and make decisions on your behalf regarding your health and welfare and or/your property and finances. The people you appoint are known as your attorneys. Once you have created your LPA it will be sent to the Office of the Public Guardian for registration. Your LPAs must be registered before they can be used.

Different Types of LPAs

There are two different types of LPAs: one for health and welfare decisions and another for property and financial decisions. Usually, people set up both LPAs with the same attorneys across each. However, you can appoint different attorneys on each LPA. Sometimes it may be the case that you have someone better suited to making decisions relating to your health and someone else better suited to your financial decisions and therefore it makes sense to appoint different people, but most of the time people keep the attorneys the same.

Difference Between the Lasting Power of Attorneys: A Springing Clause

Aside from which type of power they grant e.g. financial or health and welfare. There is one other key difference between the two, this is known as a springing clause.

Health and Welfare powers have an automatic springing clause, this means that the attorney cannot make any decisions until the donor has lost capacity and this is confirmed by a doctor. With property and financial powers, you have the choice to add a springing clause. Adding this clause would mean these powers would be the same as health and welfare in that the attorney would not be able to make any decisions until a doctor has confirmed that the donor is incapacitated. If you chose not to put a springing clause on the LPA, an attorney can make decisions as soon as the LPA is registered.

A springing clause can add an additional layer of protection, which some people prefer. However, it is often the case that someone's physical health is deteriorating but they still have capacity. In these circumstances, they may be unable to go to the bank themselves and need their attorney to go, a springing clause would make these circumstances more difficult.

How to Set Up a Lasting Power of Attorney

Choosing your Attorney

The first thing you must do when setting up an Lasting Power of Attorney is decide three things about your attorneys:

  • Who they are

  • How they act

  • When they act

You can appoint primary attorney/s, those are the people who would act in first instance, for example, most couples would appoint each other as their sole primary attorney.

Then, you appoint substitute attorneys and those are the people who will act only if your primary attorneys cannot. It is completely your choice who you wish to appoint as your attorney and what level you wish them to be appointed at. So long as your attorney is someone you trust to have your best interests at heart.

When to Consider Creating an Lasting Power of Attorney

The most obvious time to consider making an Lasting Power of Attorney when you become unwell, or are struggling to make decisions about managing your property and finances. This may result in an urgent need for an LPA and when you start considering one.

However, any one of us can become incapacitated at any time and it is important that we have someone we trust appointed to look after not only us, but our assets. We recommend creating an LPA as soon as you start to build up your own estate. As soon as you have financial responsibilities, it is important to have an LPA so that should you lose capacity, you are protected.

What Happens If I Lose Capacity without an LPA?

If you do not have an LPA and you lose capacity you can no longer set up a Lasting Power of Attorney and instead your loved ones would need to apply to the Court of Protection to be granted what is known as a deputy order. This can be time-consuming and costly. To appoint a first time deputy it is £100, however from this point for every year that the deputyship is required to be used an annual fee of £320 is charged. None of these fees will include the cost of legal advice or legal representation which is often required.

Creating a Lasting Power of Attorney is extremely important, often circumstances are unforeseen, and you want to make sure you and your loved ones are as protected and cared for as long as possible, which begins with creating an LPA. An LPA can give you peace of mind that you are being cared for by those who love you most and allow those people to look after you without any of the worries that would exist if you didn't have an LPA in place.

How Do I Get Started

Thomas Bradley & Co can help you get started with your Lasting Power of Attorney. Our experienced team are here every step of the way to ensure that your health, welfare and financial decisions are respected when you need it most. To get started, contact us today by clicking here and completing the form.


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