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Lasting Powers of Attorney

Rus­sell & Rus­sell can assist indi­vid­u­als through­out the Lanark­shire area, and we can pro­vide expert advice on a wide range of per­son­al tax­a­tion issues. Here is infor­ma­tion on last­ing pow­ers of attor­ney.

A Last­ing Pow­er of Attor­ney (LPA) is a legal doc­u­ment which some­one (the Donor) makes, giv­ing some­one they trust (the Attor­ney) the pow­er to make deci­sions on behalf of the Donor at some time in the future if he/she lacks the men­tal capac­i­ty or no longer wish­es to make those deci­sions him/herself.

The Donor must be aged 18 or over with the capac­i­ty to make an LPA. Any named indi­vid­ual with men­tal capac­i­ty aged 18 or over can be an Attor­ney as long as the rel­e­vant details are cor­rect­ly writ­ten on the LPA Form.

There are two types of LPA:

The Prop­er­ty and Affairs LPA
This type of LPA allows the Attor­ney to man­age the Donor’s finances and prop­er­ty whilst the Donor still has the capac­i­ty to make deci­sions for them­selves. Donors may include a restric­tion that the LPA may only be used at some time in the future when they lack the capac­i­ty to make deci­sions for them­selves, for exam­ple, as a result of a brain injury or the onset of demen­tia.
The Attor­ney for this type of LPA must not be bank­rupt when the LPA is signed. A sub­se­quent bank­rupt­cy could result in the LPA being auto­mat­i­cal­ly revoked if it has been reg­is­tered with the Office of the Pub­lic Guardian (OPG).
The Per­son­al Wel­fare LPA
This type of LPA autho­ris­es the Attor­ney to make deci­sions about the Donor’s per­son­al wel­fare and can be used only when the Donor lacks the capac­i­ty to make deci­sions.

Please note there is a dif­fer­ent process in Scot­land and North­ern Ire­land.

Other restrictions or conditions

An LPA may have lim­its on the deci­sions the Attor­ney can make, for exam­ple with regard to where the Donor lives or the abil­i­ty to sell the Donor’s house. The LPA may include guid­ance about the Donor’s wish­es and feel­ings. The Attor­ney should take account of guid­ance.

The Donor may appoint more than one Attor­ney, either to act togeth­er (all must agree), or togeth­er and inde­pen­dent­ly (can act togeth­er or any one can decide). It is very impor­tant for Attor­neys to dis­cuss deci­sions, where rel­e­vant, before mak­ing them to avoid con­flicts dur­ing the oper­a­tion of the LPA.

How to make an LPA

There is a spe­cial LPA form which is read­i­ly avail­able from legal sta­tion­ers or by down­load­ing from the inter­net. An LPA can be made at any time, but can­not be used until it has been reg­is­tered with the OPG. It is rec­om­mend­ed that it is reg­is­tered as soon as pos­si­ble after being made, so that there will be no delay in being able to use it should the need arise.

An LPA is a pow­er­ful doc­u­ment and it may be sen­si­ble to seek advice from some­body with rel­e­vant expe­ri­ence, such as a solic­i­tor.

The LPA Form

The LPA form can be cre­at­ed online or the form can be down­loaded. It includes:

The Attorney’s details. This sets out details of who is to be appoint­ed Attor­ney and how he/she is to act. Restric­tions or con­di­tions can be placed on the deci­sions the Attor­ney can make or pref­er­ences can be giv­en by the Donor.

Details of who should be noti­fied. There is the option to give the names of any­one who should be noti­fied when the LPA is reg­is­tered with the OPG.

The Cer­tifi­cate Provider’s State­ment. A cer­tifi­cate provider is a per­son the Donor must select to sign the LPA form to con­firm that the Donor under­stands what they are doing and nobody is forc­ing them to make an LPA. Only cer­tain peo­ple can be cer­tifi­cate providers (details are list­ed on the form). The cer­tifi­cate provider must speak with the Donor pri­vate­ly so as to be sat­is­fied that the Donor under­stands the pow­ers that are being giv­en to the Attor­ney. The cer­tifi­cate provider must also be sat­is­fied that there has been no fraud or undue pres­sure on the Donor to make the LPA.

The Mental Capacity Act 2005

This Act pro­vides a statu­to­ry frame­work to empow­er and pro­tect peo­ple who may not be able to make some deci­sions for them­selves. Such peo­ple include those with demen­tia, learn­ing dis­abil­i­ties, men­tal health prob­lems, stroke or head injuries.

It makes clear who can take deci­sions in which sit­u­a­tions and how they should go about this. It enables peo­ple to plan ahead for a time when they may lose capac­i­ty. The Act cov­ers major deci­sions about someone’s prop­er­ty and affairs, health­care treat­ment or where the per­son lives, as well as every­day deci­sions about per­son­al care or what some­one eats, where the per­son lacks capac­i­ty to make those deci­sions.

Attor­neys and oth­er peo­ple who have a duty of care to some­one lack­ing capac­i­ty must:

  • act in accor­dance with the prin­ci­ple of the Act
  • make deci­sions in the Donor’s best inter­ests
  • have regard to the guid­ance in the Code of Prac­tice
  • act only with­in the scope of the Attorney’s author­i­ty.

The Code of Practice

The Code of Prac­tice sup­ports the Act and pro­vides guid­ance for peo­ple work­ing with and/or car­ing for adults who lack capac­i­ty, includ­ing fam­i­ly mem­bers, pro­fes­sion­als and car­ers. It describes their respon­si­bil­i­ties when act­ing or mak­ing deci­sions with, or on behalf of, indi­vid­u­als who lack the capac­i­ty to do so them­selves.

Duties and oblig­a­tions of an Attor­ney under an LPA include:

  • a duty of due care when mak­ing deci­sions on behalf of the Donor;
  • to car­ry out instruc­tions as required by the LPA;
  • a duty not to del­e­gate the Attorney’s pow­ers under the LPA unless autho­rised to do so
  • not to ben­e­fit them­selves but to ben­e­fit the Donor – this means avoid­ing con­flicts of inter­est and in par­tic­u­lar not to prof­it or acquire per­son­al ben­e­fit from their posi­tion
  • a duty of good faith, which means act­ing with hon­esty and integri­ty
  • a duty of con­fi­den­tial­i­ty; to keep the Donor’s affairs con­fi­den­tial unless the Donor has con­sent­ed oth­er­wise.

and specif­i­cal­ly in rela­tion to prop­er­ty and affairs LPAs:

  • to keep the Donor’s mon­ey and prop­er­ty sep­a­rate from their own
  • to keep accu­rate accounts on all of their deal­ings as Attor­ney.

If you are in the Lanark­shire area and would like advice on per­son­al tax and finan­cial plan­ning issues, con­tact Rus­sell & Rus­sell.