At some point, many of us will have the unfortunate experience of seeing a friend or relative suffer through physical or mental illness or injury. When this happens, it is often difficult for the family or carers to deal with the person’s property and finances or make decisions about the person’s welfare.

You can avoid these issues for your loved ones by drawing up a Lasting Power of Attorney.

You don’t need to try to predict the future. Just plan for it. Our Power of Attorney solicitors can help you plan for every possibility and put in place the right documents so that people you trust are able to provide the support you need, if and when you need it.

We can advise on:

• Lasting Powers of Attorney
• Ordinary Powers of Attorney
• Enduring Powers of Attorney

We also provide advice to Attorneys about fulfilling their important role in making decisions for someone who has lost their mental capacity.

Get in touch with our Power of Attorney solicitors in Sheffield and Barnsley

Contact our friendly, expert Power of Attorney solicitors in Sheffield and Barnsley for all the advice you need about Lasting Powers of Attorney, Ordinary Powers of Attorney and Enduring Powers of Attorney.

We have local offices across Sheffield on Attercliffe Road, in Gleadless and Hillsborough , plus an office in Barnsley.

Give us a call at your nearest branch or fill in our online enquiry form, and we’ll give you a call back as soon as possible.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you to nominate one or more people (your Attorneys) to make decisions and act on your behalf when you are unable to make your own decisions during your lifetime. This might be from old age, accident, illness or if you are unable to undertake tasks yourself due to being out of the country.

LPAs cease on death. At this time, the Executors of your Will take over your Estate.

Who can make a Lasting Power of Attorney?

Any person over the age of 18 and who has mental capacity can enter into an LPA.

There are two types of Lasting Power of Attorney:

Property and Financial Affairs Lasting Power of Attorney:

A Property and Financial Affairs LPA allows your Attorney(s) to make decisions on your behalf about your property and affairs, including:

• Paying bills
• Collecting income and benefits
• Moving house.

This type of LPA does not allow your Attorney(s) to make any decisions about your welfare or care. A Property and Financial Affairs LPA can be used by your Attorneys as soon as it is registered if you so wish – you do not have to have lost mental capacity.

Health and Welfare Lasting Power of Attorney:

A Health and Welfare LPA allows your Attorney(s) to make decisions on your behalf about your day-to-day care and welfare. This includes giving consent for medical and life-sustaining treatment and deciding where you live and what you eat. This power only comes into effect if you have lost capacity. Your Attorneys cannot act on your behalf under a Health and Welfare LPA if you still have mental capacity.

Our Lasting Power of Attorney solicitors can provide advice about both kinds of LPA, helping you decide which one is right for you and what kind of support you might need in the future.

Is a Lasting Power of Attorney the same as a Will?

No. A Lasting Power of Attorney is a document that allows people to act for you and deal with your assets on your behalf during your lifetime. Its power ends on death.  Your Will deals with your assets after you die.

Who should have a Lasting Power of Attorney?

In short, every person who has mental capacity should have an LPA if they want to ensure that there is someone to manage their affairs in the event that they are unable to do so.

An LPA is seen as just as important as a Will, sometimes more so. It is managing your affairs and your welfare needs (if you do not have mental capacity), whilst you are still alive.

Who should I make my Attorney?

An Attorney has a very important role to play, which involves a considerable amount of responsibility and power. It is essential that you trust the person/people you choose; they could be a spouse or partner, family member, close friend, or even a professional such as a solicitor. We also recommend that you make sure the person/people you have chosen feel comfortable with taking on this responsibility.

It is worth taking the time to think about who you would feel comfortable with taking care of your finances, property and you if the worst should happen. Our Lasting Power of Attorney lawyers are happy to talk you through your options and the possible legal implications so you can feel confident about your final decision.

Can I have more than one Attorney?

You can appoint more than one Attorney and also appoint replacement Attorneys if you wish. It is a good idea to appoint more than one Attorney, so that if your Attorney is unable to act for you, you have someone else who can act. How the Attorneys act is up to you:

Solely - when there is only one Attorney appointed

Jointly - all Attorneys must act together

Jointly and Severally - the Attorneys can act alone or together

Jointly in respect of some matters and Jointly and Severally in respect of others - you can stipulate in which circumstances your Attorneys must act together.

Our Lasting Power of Attorney solicitors can provide advice on each of the above options and their risks and benefits.

The role of an Attorney – what can an Attorney do under a Lasting Power of Attorney?

An Attorney must act in the best interests of the Donor (the person who made the LPA). They must follow certain principles which are set out in the Mental Capacity Act 2005 and its Code of Practice. This can be a complex job, and each decision an Attorney makes needs to be considered separately. For example, a Donor may be able to make a decision about what to eat for breakfast, but not about where they should live long-term.

The exact scope of an Attorney’s powers will depend on what type of LPA they have, the terms, and the circumstances of the Donor.

Our Lasting Power of Attorney solicitors can help Attorneys fulfil their responsibilities and act in the best interests of their loved one.

If I’m married or in a civil partnership, can my spouse or civil partner can make decisions without an LPA?

No, your spouse or civil partner cannot make decisions for you without an LPA. You would still need an LPA to enable your spouse or civil partner to act on your behalf.

Can my Lasting Power of Attorney be used straight away?

Before an LPA can be used, it must be registered at the Office of the Public Guardian. Once registered, a Property and Financial Affairs LPA can be used by your Attorney(s) provided you haven’t restricted it to only coming into effect on mental incapacity (in which case your Attorney(s) would only be able to use the LPA if you had lost mental capacity).

What is mental capacity?

Mental capacity is the ability to fully understand and make your own decisions and be aware of the outcome those decisions will have.

Someone may be said to lack capacity if they are unable to:

• Understand information about a particular decision
• Remember that information long enough to make the decision
• Weigh up the information to make the decision, or
• Communicate their decision

The Mental Capacity Act says:

• Assume a person has capacity to make a decision themselves, unless it’s proved otherwise
• Wherever possible, help people to make their own decisions
• Do not treat a person as lacking the capacity to make a decision just because they make an unwise decision
• If you make a decision for someone who does not have capacity, it must be in their best interest
• Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

Someone may be deemed to lack capacity if they have:

• Dementia
• A severe learning disability
• A brain injury
• Have had a stroke
• Unconsciousness caused by an anaesthetic or sudden accident

However, just because someone has one of the above conditions, it does not necessarily mean that they lack capacity to make a specific decision. Someone can lack capacity to make some decisions, for example, about complex financial matters, but be able to make decisions about what they need to buy from the supermarket.

Our Power of Attorney lawyers are here to support you in making decisions for someone who has lost mental capacity.

What is an Ordinary Power of Attorney?

An Ordinary Power of Attorney (OPA) is only valid whilst you have mental capacity and allows a person or persons to make financial decisions on your behalf.

These are normally used as short term measures, for example, if you are in hospital and need someone to manage your bank account whilst you are unable to.

Ordinary Powers of Attorney can be limited so that the appointed Attorneys can only act in respect of a certain bank account, for example.

What is an Enduring Power of Attorney?

Lasting Powers of Attorney (LPA) replaced enduring Powers of Attorney (EPA) in October 2007. If you had an EPA drawn up before that date and you and your Attorneys signed it before the 1^st October 2007, it should still be valid.

An EPA enables your Attorney(s) to make decisions regarding your financial affairs. Under an EPA, your Attorney(s) could not make decisions concerning your health and welfare. You will need to make a Lasting Power of Attorney to allow someone to make decisions about your health and welfare.

The EPA could be used immediately by your Attorney(s) once it was signed. However, your Attorney(s) will need to register the EPA with the Office of the Public Guardian to be able to use the document if you have lost capacity.

What if I don’t have a Lasting Power of Attorney and lose mental capacity?

Once you have lost mental capacity, you will be unable to enter into an LPA. At this stage, an application would have to be made to the Court of Protection for a deputy to be appointed for you to manage your affairs. Unfortunately, this is a longer, more expensive process, but we are able to provide assistance with this if you have a family member or close friend who requires this.

We can also assist with Court of Protection applications. So get in touch if you are concerned that a loved one has lost mental capacity but does not  have a Lasting Power of Attorney.

How do I make a Lasting Power of Attorney?

The forms are available for completion, for free online. However, they are quite long and need to be signed in a particular order to enable them to be valid and registered at the Office of the Public Guardian.

For this reason, it is advisable to seek professional assistance with the completion of these if you feel you are unable to complete them yourself.

Get in touch with our Power of Attorney solicitors in Sheffield and Barnsley

Contact our friendly, expert Power of Attorney solicitors in Sheffield and Barnsley for all the advice you need about Lasting Powers of Attorney, Ordinary Powers of Attorney and Enduring Powers of Attorney.

We have local offices across Sheffield on Attercliffe Road,  Gleadless and Hillsborough, plus an office in Barnsley.

Give us a call at your nearest branch or fill in our online enquiry form, and we’ll give you a call back as soon as possible.