What is a property and financial affairs lasting power of attorney?

A “lasting power of attorney” is a legal document in which you appoint someone to make decisions on your behalf. The person so appointed is referred to as an “attorney”.

There are two types of lasting power of attorney, a “health and welfare lasting power of attorney” and a “property and financial affairs lasting power of attorney”. In the case of a property and financial affairs lasting power of attorney, the attorney is granted the power to make decisions about your property and financial affairs.

Can anyone make a property and financial affairs lasting power of attorney?

A person must have the “mental capacity” to make a property and financial affairs lasting power of attorney for it to be valid. They must also be at least 18 years old.

For a person to have the required mental capacity they must be able to understand and remember information for long enough and be able to weigh up information to enable them to make a decision. They must also be able to communicate in some manner.

When can a property and financial affairs lasting power of attorney be used?

A property and financial affairs lasting power of attorney cannot be used until it has been registered with the “Office of the Public Guardian”.

Once it has been registered your attorney can make decisions for you when you still have the capacity to make such decisions as well as when you lack capacity should that happen at a later date.

Why would I want to someone to make decisions for me when I still have the capacity to make such decisions?

It may be easier for someone to manage your property and financial affairs if, for example, you are living in a residential care home or if you are out of the country for long periods of time.

What sort of decisions can an attorney make?

The sort of decisions an attorney can make will depend upon what powers they have been given in the property and financial affairs lasting power of attorney.

An attorney may be given the power to make decisions in relation to any or all of the following matters:

Paying your bills;

Collecting benefits for you;

Selling or renting out your property;

Any decisions made by an attorney should be made in the best interests of the “donor” (the person who made the lasting power of attorney).

What sort of decisions can an attorney not make?

A property and financial affairs lasting power of attorney does not give your attorney the power to make decisions relating to your health and welfare. If you would like your attorney or another person to take responsibility for your health and welfare a health and welfare lasting power of attorney will be needed. A health and welfare lasting power of attorney cannot be used, however, while ever a donor has the capacity to make decisions about their own health and welfare.

How do I make a property and financial affairs lasting power of attorney?

To make a property and financial affairs lasting power of attorney you must complete a “lasting power of attorney form”. A copy of the form can be obtained from the Office of the Public Guardian or can be downloaded from their website.

Our article called “lasting powers of attorney” provides guidance on completing the form.

When should the property and financial affairs lasting power of attorney be registered?

A property and financial affairs lasting power of attorney cannot be used until it has been registered with the Office of the Public Guardian. You can apply to register it at any time.

How do I register a property and financial affairs lasting power of attorney?

To register your property and financial affairs lasting power of attorney you will need to complete 2 forms and send them to the Office of the Public Guardian together with a fee to cover the cost of registration and the original property and financial affairs lasting power of attorney form. The forms can be obtained from the Office of the Public Guardian or downloaded from their website. Details of the fee can also be found on their website.

The forms which need to be completed are form LPA001 (“notice of intention to apply for registration of a lasting power of attorney”) and form LPA002 (“application to register a lasting power of attorney”). Our article called “lasting powers of attorney” explains more about these forms.