Frequently Asked Questions

A lasting power of attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.

This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions (you ‘lack mental capacity’).

There are 2 types of LPA:

• Property & Financial Affairs

• Health & Welfare

You can choose to make one type or both.

This LPA gives an attorney the power to make decisions about money and property for you, for example:

• Managing a bank or building society account.

• Paying bills.

• Collecting benefits or a pension.

• Selling your home.

It can be used as soon as it’s registered, with your permission.

This LPA gives an attorney the power to make decisions about things like:

• Your daily routine, for example washing, dressing, eating.

• Medical care.

• Moving into a care home.

• Life-sustaining treatment.

It can only be used when you’re unable to make your own decisions.

You could choose someone you're close to, such as a family member or friend. Or you could choose a professional, such as a solicitor. It's important to be sure that whoever you choose will make decisions in your best interests – for more information on your 'best interests', see the FAQ section at the bottom of the page.

It’s also important that you give the person you ask to be your attorney time to think about the role and responsibilities, to make sure they feel comfortable doing it.

Whoever you choose, your attorney needs to be 18 or over, and they can't be a professional care worker apart from in exceptional circumstances (for example, if they're your only relative). There are other restrictions on who you can choose to be your attorney. For example, an attorney for financial decisions cannot be bankrupt.

You can appoint as many attorneys as you like. It can be a good idea to appoint more than one attorney, but if you do, you must decide how they're going to make decisions. They can make decisions:

• Jointly, meaning they must make all decisions together

• Jointly and Severally, meaning they may act together or separately, as they choose.

Or you may want to specify that attorneys must act jointly for specific decisions, such as selling a house, but they can act jointly and severally for all other decisions.

You can also appoint replacement attorneys, in case someone you've chosen becomes unable to act on your behalf, for example if they die or lose mental capacity.

A life interest trust allows a person to set up a trust by putting a share in a property in trust for the 'life tenant' (usually their partner).

A Property Life Interest Trust can be created within your Will allowing you to protect your share of the property to your chosen beneficiaries. This must be set up when both partners are still alive.

Most couples make a Will leaving everything to the surviving spouse, then on second death, equally between their children or grandchildren.

This can cause issues in the future for your chosen beneficiaries who could be disinherited, or with cost of later life care.

The advantages of setting up a Life Interest Property Trust is that it provides certainty that your 50% property share will be passed onto your chosen beneficiaries & this cannot be undone by your surviving spouse, whilst allowing your spouse to remain in the property throughout their lifetime. On 2nd death the estate is then distributed.

How does it work?

The terms of the Trust are set out within your Will and they usually appoint the surviving spouse and their children as Executors and Trustees. The Trustees will look after the 50% share of the house of the first spouse to die whilst the second spouse is alive. The Trust is formally recorded so it is clear that the survivor does not own the whole house.

In order for the Trust in the Will to work the property must be set up as Tenants in Common which means you each own a 50% share. A change is needed at the Land Registry.

This is especially useful if you have children from previous relationships.

Example – A Property is owned 50/50 as tenants in common

Mr X dies. His 50% of the property goes into trust for his children or chosen beneficiaries.

Mrs X can remain in the property until her death (the life interest)

If Mrs X requires long term care only HALF the property can be used for care costs. Mrs X can still move or downsize.