You should make a Lasting Power of Attorney (LPA) to give someone else the power to make important decisions on your behalf in the future if you’re ever unable to do so yourself. There are two types of LPA, one that allows your chosen attorney(s) to make decisions regarding your health and welfare, and the other that allows them to manage your finances and property. Without these important documents in place, if you’re ever unable to look after yourself, social services and the state will take control over most aspects of your life, and your loved ones won’t have the legal right to intervene. But are LPAs legally binding? And can they ever be revoked or overruled? In this guide, we’ll explain how the legalities of a Lasting Power of Attorney works, so you can fully understand the authority your chosen attorney(s) will have.
What Makes A Lasting Power of Attorney Legally Binding?
A Lasting Power of Attorney is a legally binding document as long as certain rules and conditions are followed by you whilst you’re making the document, and by your attorney whilst they are acting upon it.
The first condition is that you must have sufficient mental capacity when you make your LPA. This means you should make the document well before you may need it, otherwise, it could be too late. If you are unsure whether you or someone you know still has the mental capacity to make an LPA, contact us here and we’ll offer our professional opinion free of charge.
The second condition is that you must not be pressured into making an LPA, your loved ones can help you understand and arrange the document, but the decision has to be made by you and you only.
The third condition is that your LPA must be registered with the Office of the Public Guardian. Unlike a Will, which becomes legally binding once it has been signed, an LPA only becomes legally binding once it has been registered. The rules and conditions that your attorney must follow mostly come down to acting in your best interests and not abusing their powers. We’ll look into this in more detail below, as we discuss when an LPA can be revoked or overruled.
Can My Lasting Power of Attorney Be Revoked or Overruled?
You, as the ‘donor’, have the right to revoke or amend your Lasting Power of Attorney at any point whilst you still have sufficient mental capacity.
The only other circumstances in which your LPA could be revoked, or partially revoked, are if:
- the decisions it represents are no longer relevant or have already been made
- your attorney has lost sufficient mental capacity to act
- your attorney has abused their powers or has not acted in your best interests
- it becomes apparent that you were pressured into making an LPA
- it becomes apparent that your LPA was made under fraudulent conditions
If you have more than one attorney named on your LPA, the courts may only restrict authority for the relevant attorney (rather than revoking the entire document), so your LPA could still continue to be legally binding for the remaining attorney(s).
Will My Attorney Have Complete Control Over My Medical Care?
Although a Health & Welfare LPA gives your attorney the power to make important decisions regarding your medical care, there are some instances where their authority could be challenged or overruled, such as:
- if a particular medical decision falls outside of the scope of your LPA
- if you made an ‘Advance Decision’ (Living Will) that overrides your LPA
- if your doctor believes your attorney is not acting in your best interests
If your doctor believes your attorney’s decision is not in your best interests, there is a process that both parties can follow to resolve the issue. This starts with a discussion, then a second opinion or advocate can be requested, and then a solicitor can get involved. If there is still no resolution, the Court of Protection will make a final decision. If a decision is required urgently, there are emergency procedures in place to ensure the issue is resolved quickly.
The Bottom Line
A Lasting Power of Attorney is a legally binding document that gives someone you know and trust the power to make important decisions on your behalf if you’re ever unable to do so yourself. You can choose more than one attorney, either to manage different areas of your life or to act as a backup attorney. Providing you have sufficient mental capacity to make an LPA, and you’re acting on your own free will, once your document has been signed and registered, your attorney(s) will be given powers that social services and the state would otherwise hold. Despite the legally binding nature of an LPA, there are rare instances where your attorney’s authority could be revoked or overridden. This usually only happens if your attorney’s decisions are deemed not to be in your best interests.
Here at Michael Usher Wills & Estate Planning, we’ve been helping our local community with LPAs for over 30 years. Please get in touch and our friendly team of experts will answer all of your questions for free. Call us on one of the numbers below or book a FREE consultation here. We look forward to helping you and making sure you and your family are fully protected!
Camberley: 01276 691979
COVID-19 Update
You are more than welcome to come into our office, but we can also make your Lasting Power of Attorney remotely if you’d prefer. The article below details how this works for our Wills service but the process is very similar when making an LPA. The only difference is that you require just one witness when signing your LPA (we can act as your witness if you need us to). If you would like to make your LPA remotely, please click on the link below for more information or call us to get started.
