Unlike the Health LPA, you can choose whether this LPA can be used immediately, or only once you have lost mental capacity.
You must have “mental capacity” when you make the LPA. This must be certified by an independent person.
If you have business interests, there may be a case for making two separate Finance LPAs — one for your personal affairs, and one for your business — so that different attorneys can look after different things. If so, say what you want in the instructions for each. For instance, in one you might say:
“My attorneys only have the authority to use my personal bank account. They are not permitted to access my business account or make any decisions relating to my business.”
“My attorneys only have the authority to use my business accounts and make decisions relating to my business. They are not permitted to use my personal account or make decisions about my personal finances.”
Most people leave this page blank. Complicated or badly worded instructions or preferences can make an LPA unworkable — talking to your attorneys directly, so they understand how you want decisions made, is often better.
If you have opted, in section 5, for your attorneys to act only once you have lost mental capacity, you might add instructions about how that capacity should be assessed — for example: “This lasting power of attorney only applies if a doctor confirms in writing that I don’t have the capacity to make decisions about my finances.” If you trust your attorneys to judge this themselves, you do not need to add wording like this.
Discretionary investment management. If you already have investments professionally managed on a discretionary basis, or would like to allow your attorneys to use such a scheme, take legal advice on whether you need express provision for this in your LPA. At least one major financial institution treats existing discretionary management contracts as ending automatically on the donor’s loss of capacity, and will only permit attorneys to make new discretionary investments where the LPA expressly allows it.
| Preferences | What you would like your attorneys to think about. Not binding, but they should bear them in mind. Use words like “prefer” or “would like”. |
| Instructions | What your attorneys must do. Binding — use words like “must”, “shall” or “have to”. More likely to cause problems if not carefully worded — see LPA: Common Mistakes. |
Professional attorneys — such as solicitors or accountants — charge for their services, and may also claim fees and reasonable expenses. Set out what you have agreed in section 7, for example: “I wish my professional attorneys to be paid the standard solicitor rate as set by [a named professional organisation].” Fees and expenses are paid out of your own funds.
Non-professional attorneys — a spouse, family member or friend — will often act without being paid, though they can still claim reasonable expenses, such as postage, travel costs, or the cost of an accountant preparing annual accounts. If you don’t want to pay your attorneys a fee, write nothing — they can still claim expenses. If you do want to pay a fee, you must say so in your instructions; you can set different fees for different attorneys. For example:
“Each attorney must be paid a single fee of £1,000 each year, the payment to be made on 20 December each year. The fees will stop when my estate drops to £[amount].”
Some material on this page is adapted from the Office of the Public Guardian’s official guidance.