Lasting Powers of Attorney and loss of capacity

Lasting Powers of Attorney are often seen as an insurance policy against loss of mental capacity.

Clients may hope that they’ll never be needed. However, there’s a reason they play such an important part in succession planning. Managing welfare and financial issues without one, for a person who has lost capacity, can be costly and extremely onerous.

How we can help

General Lasting Powers of Attorney

We can help you to put in place Lasting Powers of Attorney for either or both of property & financial affairs and health & welfare. Often the content is straightforward (and the forms are publicly available), but the process itself can be deceptively tricky and the Office of the Public Guardian are notoriously stringent when dealing with registration.

Incorrectly prepared or signed forms can lead to lengthy delays. We can help you to prepare and sign the forms, act as your ‘certificate provider’ and advise on or facilitate capacity assessments.

It may be that you want something a bit more complicated, with multiple attorneys (or replacements) and a record of wishes or requirements. We can help with what inclusions are standard and advisable and what may seem like a good idea but should be avoided.

Drafting side letters of wishes can provide valuable information to attorneys should the powers of attorney become active. They may include useful information about what advisers you want your finance attorneys to use, investment choices, or what personal welfare decisions are important to you in terms of quality of life, people and activities. We can work with you as much as you need to create something personal and meaningful.

Specialist Lasting Powers of Attorney

You may have particular assets that you want to be dealt with by a different set of attorneys. A classic example would be a shareholding in a family business dealt with by a Business Lasting Power of Attorney.

Separate Lasting Powers of Attorney can be put in place to ensure that different people control different assets for your benefit, but care needs to be taken to make sure the different powers work harmoniously together. In the example of a shareholding, the choice of attorney and powers given can be tied in with the provisions in the corporate governing documents about director succession on incapacity, and any details in the shareholders agreements or family charters.

Living will

A Living will is something quite distinctive from a Lasting Power of Attorney for health & welfare. The latter gives the ‘power to decide’ to your chosen attorneys, the former sets out in advance what your wishes are and when you want them to be followed. We can help you to decide which document type is appropriate for your situation, and help you to put the correct documentation in place.

Loss of capacity

If you do find yourself trying to manage the finances of someone who no longer has the capacity to put in place a Lasting Power of Attorney, or you are an attorney wanting to take action that requires the consent of the Court of Protection, we can help you with the necessary applications.

Our experience

Here are just a few examples of our work helping clients to put in place Lasting Powers of Attorney:

we helped a client who personally held a number of commercial properties in his sole name and was also the sole director and shareholder of a property investment company, to put in place one Lasting Power of Attorney which would give his wife control over his ‘personal’ assets, and another which would give control over his ‘business assets’ to his trusted employee – separately we also advised on changes to the business to manage the business succession issues.
another client was worried that she was putting too much of a burden on her chosen attorneys so we not only put in place a Lasting Power of Attorney for property & financial affairs but also helped her prepare a side letter which detailed exactly what was expected of her attorneys. This included their duties and powers, her investment strategy, her expectations about delegation, and the names of the long-term professionals she wanted to instruct.