12.11.24

Bespoke Lasting Powers of Attorney for Different Scenarios

Lasting Powers of Attorney (LPAs) are an essential part of planning for the future. They are the best way of ensuring people can make decisions on your behalf should you no longer be able to make decisions for yourself.

You can read more about what an LPA is and how it works on our Powers of Attorney page.

You can also download our Practical Guide to Lasting Powers of Attorney here.

One of the reasons people may delay making an LPA is they are unsure how best to prepare it in their specific circumstances. In this piece, we explore some different scenarios and how LPAs could be tailored to meet your individual needs.

I run my own business. I want to make an LPA, but I don’t want my business partners or colleagues to make decisions about my personal finances, and vice versa.  What should I do?

You can make an LPA relating to your business, and a completely separate LPA for your personal finances. The two documents would operate independently of each other. This means your Attorneys under your ‘business LPA’ make decisions about your business only, and your Attorneys under your personal LPA would take care of your personal property and finances.

If you are a sole trader or sole director/shareholder of a company, a business LPA is an effective way for you to ensure continuity of your business should you become incapacitated.

If you are in a partnership or are a director of a company, the partnership agreement / company’s Articles of Association (respectively) may stipulate what happens if you were to become incapacitated. You should seek advice on how to word your business LPA to ensure it does not conflict with the terms of your partnership agreement / Articles of Association.

Each LPA should specify the scope of the Attorneys’ powers to prevent confusion or dispute about their respective responsibilities and decision-making authority.

We strongly recommend taking legal advice to ensure the LPAs capture everything appropriately.

I don’t have family members that I want to ask to be my Attorney. What can I do?

It is not a requirement for an Attorney to be a relative. Some people have lots of family members but do not want any of them to look after their affairs! In other cases, relatives do not get on, which makes working together (or you choosing between them) very difficult.

Broadly, an Attorney can be any capable person over the age of 18 who you trust to make decisions on your behalf. They could be a family member, friend, or even a colleague.

An alternative is to appoint a professional to be an Attorney. This could be a named individual (such as a Solicitor) or it could be a Trust Corporation. You can read more about Trust Corporations and the role they can play here. The key benefits of appointing a professional are that they are impartial, and they must act to a very high standard in terms of their conduct and the fees they charge.

Please note that an individual who is bankrupt or under a Debt Relief Order cannot be a Property & Financial Affairs Attorney.  Also, some professionals will not be appointed in certain circumstances to prevent any conflict of interests.

I have a child with learning disabilities / additional needs. Can my Attorneys make decisions for them on my behalf?  

The ‘power’ given under an LPA relates only to you and your affairs. Therefore, you cannot give your Attorneys power to take decisions for your child.

However, you can include wishes in your LPA that relate to your child and that could help them. For example, your LPA could ask your Attorneys to pay maintenance, or to allow them to live in your home. Your Attorneys would honour your wishes as long as it was in your best interests to do so.

You could also make a separate Letter of Wishes that is kept alongside your LPA which gives your preferences. It is not a legally binding document, but it is very helpful for your Attorneys. It is also more flexible, because you can change a Letter of Wishes at any time, and as many times as you like.

It may be that your child has capacity to make LPAs themselves.  If they cannot, a deputyship will enable people to make decisions for them. Our Practical Guide to Decision Making explains this in more detail.

I live abroad and have assets in the UK. I want my Attorneys to look after them when I am overseas, but I want to take back control when I am in the UK.

You can ask your Attorneys under your Property & Financial Affairs LPA to manage things for you when you want them to, for as long as you have mental capacity.

For example, if you own a property that is rented out, you may want your Attorneys to deal with the letting agent, authorise repairs on your behalf, liaise with utility companies, and such like. If you then decide to manage these yourself, you could simply inform your Attorneys and the relevant third parties. If you then want your Attorneys to resume managing the property on your behalf, they could do so.

If you were to lose mental capacity then your Attorneys would have authority to continue, or resume, managing your property and finances on your behalf.

It is important to note that LPAs are legally valid in England & Wales. Powers of Attorney are slightly different in Scotland and Northern Ireland, although they operate in a very similar way. An LPA can sometimes be used outside of England & Wales, and some foreign Powers of Attorney will be accepted here. The rules and policies surrounding this vary between jurisdictions, so you should seek specialist advice if you are affected.

How can we help?

Powers of Attorney are a complex area and we understand that the process and options may seem daunting. For further information or to arrange a consultation with our specialist team, please do not hesitate to contact us.