What is a Property and Affairs Lasting Power of Attorney (LPA) and why is it so important?
This type of LPA allows Attorneys to make decisions about anything that relates to a person’s property and financial affairs, such as (this list is not exhaustive):

• Buying or selling property;
• Opening, closing or operating any bank, building society or other account;
• Giving access to financial information;
• Claiming, receiving and using (on the person’s behalf) all benefits, pensions, allowances and rebates;
• Receiving any income, inheritance or other entitlement on behalf of the person;
• Dealing with the person’s tax affairs;
• Paying the person’s mortgage, rent and household expenses;
• Insuring, maintaining and repairing the person’s property;
• Investing the person’s savings;
• Making limited gifts on the person’s behalf;
• Paying for private medical care and residential care or nursing home fees;
• Applying for any entitlement to funding for NHS care, social care or adaptations;
• Using the person’s money to buy a vehicle or any equipment or other help needed;
• Repaying interest and capital on any loan taken out by the person.

The person making the LPA (the Donor) can specify whether they want their Attorney(s) to act whilst they still retain capacity or only once they have lost mental capacity. For example, a Donor who finds it difficult to get about or talk on the telephone, or who is out of the country for a long period of time, may want their Attorney(s) to manage some or all their finances whilst they still have capacity.

It is possible for a Donor to give instructions to their Attorney(s) in the LPA. For example, a Donor might want to (again, this list is not exhaustive):
• State that their Attorney(s) cannot act until the Donor lacks capacity and include an instruction on how capacity should be assessed;
• Add a condition that the Attorney(s) must act or not act in a particular way;
• Add a condition that the Attorney(s) must keep accounts and submit them to someone of the Donor’s choosing;
• Limit the powers of the Attorney(s); or
• Add an instruction regarding the delegation of investment decisions to a discretionary investment manager.

The wording of instructions should be straightforward, easy to understand and capable of being put into practice. If instructions are too complicated or impractical when the Office of the Public Guardian (OPG) considers the application for registration, it may refer the LPA to the Court of Protection to consider cancelling that instruction. This is why proper legal advice should always be taken (preferably from ST10 LAW) when including instructions in an LPA.

The Donor can include an instruction in the LPA that their Will should not be disclosed to the Attorney(s) or set out the circumstances in which disclosure is permitted. In the absence of any such instruction, the Attorney(s) is/are entitled to a copy of the Donor’s Will unless the disclosing Solicitor has cause for concern.

So, why is a Property and Affairs LPA so important?

In a nutshell, if someone loses mental capacity without a Property and Affairs LPA in place then the only way that someone else will be able to deal with that person’s financial affairs will be by making an application to the Court of Protection for a Deputyship Order. The problem with this is that these applications typically take between 6 and 12 months to make and delays can occur due to Court backlogs, errors in the application or objections from family members. Deputyship applications are also very costly, and it can typically cost up to £3,000 all in to obtain an Order. In addition, the Deputy or Deputies must submit an annual report to the OPG, and this in itself is an arduous task.

In short, a Property and Affairs LPA is a crucial tool for anyone who wants to get their affairs in order. Proper advice should be taken when considering them and here at ST10 LAW our charges will be difficult to beat!

Nick @ ST10 LAW
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