Lasting Power of Attorney: What is it, why should I get one and how can it save my business?

A Lasting Power of Attorney (LPA) is a legal document whereby a Donor (e.g. yourself) entrusts a personally selected Attorney or Attorneys to deal with certain personal matters once they themselves lack the capacity to do so.

An LPA is a document to have if you want peace of mind, particularly if you own a business. The LPA for Property and Financial Affairs will enable your Attorneys to make decisions about your business should you be unfit to do so yourself.

If you become incapacitated without an LPA in place, an application will have to be made on your behalf to the Court of Protection for someone to be appointed your deputy. This process can take months and is costly. A number of things could go wrong during this time.

An LPA can quickly appoint a person of your choice to deal with your business affairs on your behalf. This can protect you from such things as banks recalling loans and mortgages or foreclosing on property should payments be missed during the time an application to the Court of Protection is made.

In the LPA application, you can give guidance to your Attorneys so they will know exactly how you wish your business affairs to be treated. It is a document that can protect you, your business, employees and your family and therefore it should not be ignored.

There are two different types of LPAs which are:

  • Health and Welfare (allowing decisions on treatment, care, medication, where you live etc); and
  • Property and Financial Affairs (allowing an Attorney to make decisions about paying bills, dealing with the Bank, collecting benefits, selling your house, etc)

From a legal perspective, LPAs only cover people in England and Wales and therefore may not be enforceable in any other country (including Scotland and Northern Ireland).

The LPAs must be registered with the Office of the Public Guardian before they can be used and only come into force once the Donor lacks mental capacity, as specified by the Mental Capacity Act (2005), or simply desires not to make the decisions for themselves.

Many people are of the opinion that they do not need to complete an LPA if they are young, or of sound mind, etc. however one cannot be certain of any eventuality and so should the unexpected happen and you are incapacitated for any length of time, someone will need to be able to pay your bills and even make decisions in relation to your healthcare. Therefore, regardless of your age or your current state of health it is worth completing and registering an LPA in preparation for any eventuality. LPAs can be made by the Donor themselves (provided they are over the age of 18) but also, in certain cases by the Attorney(s) if the Donor already lacks the mental capacity to do so.

It is important to note that, as outlined above, there are two different types of LPA and there is not a single LPA that covers both Health and Welfare and Property and Financial Affairs. Should a Donor wish to be subject to both types of LPA then separate forms must be completed and two separate fees are required to be paid to the Office of the Public Guardian. The fee payable to the Office of the Public Guardian for registering a single LPA is £120 and therefore the fee for registering both Health and Welfare and Property and Financial Affairs LPAs with the Office of the Public Guardian is £240. It should also be noted that it is not possible to submit a joint LPA for two or more individuals.

Once you have completed and submitted an LPA it can superseded at any time, prior to death, by registering new forms with the Office of the Public Guardian. An LPA can also be revoked by way of a Deed of Revocation which, once executed should also be sent to the Office of the Public Guardian for registration.

For each LPA at least two forms are required to be completed and at Cheesmans we would prepare the necessary forms and provide detailed instructions for signature by the Donor, Attorney(s) and the Certificate Provider, where applicable, who confirms that the donor has the mental capacity to register an LPA. Following the signing of all appropriate forms we would submit the documents to the Office of the Public Guardian on the Donors behalf and project manage the registration process in order to make the procedure as simple and hassle free for our clients.


Contact us for further details:

Phone: 020 7354 3914

The content of this document is intended for general guidance only and, where relevant, represents our understanding of current law and HM Revenue and Customs practice. Action should not be taken without seeking professional advice. No responsibility for loss by any person acting or refraining from action as a result of the material in this document can be accepted and we cannot assume legal liability for any errors or omissions this document may contain. © Cheesmans. March 2011. All rights reserved.

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