Powers of attorney & deputyships FAQs


Please find below our most frequently asked questions with relevant answers.

For anything further, one of our specialists would be delighted to meet you either in our office or in your own home to talk through your requirements and answer any questions. Please contact us at any time.

Is an ordinary power of attorney the same as a lasting power of attorney?

No. An ordinary power of attorney is automatically revoked if the donor loses mental capacity whereas a lasting power of attorney remains valid.

The revocation of the ordinary power of attorney in these circumstances will be at the time when it is most needed. Your loved ones will then have to make an application to the court of protection for deputyship but the procedure can be costly and time consuming. You will also have lost the right to choose who will look after your affairs at a time when they should be managed efficiently, privately and sympathetically.

It is, therefore, important to remember that a lasting power of attorney remains valid after such time when you may lose mental capacity and therefore offers both protection and peace of mind.

For anything further, one of our specialists would be delighted to meet you either in our office or in your own home to talk through your requirements and answer any questions. Please contact us at any time.

Can I make my own lasting power of attorney?

Yes but this should be avoided. There are cases where the court of protection has interfered with the intention of the donor as a result of the lasting power of attorney having been incorrectly created.

In some cases, the court has corrected the errors but in others the lasting power of attorney has been thrown out, effectively declared invalid. Either way, if a lasting power of attorney has been incorrectly prepared your family can be forced to adopt the expensive and slow route of applying to the court to either become a deputy or to seek a ruling to allow the problem to be deleted from the original lasting power of attorney.

Such undesirable outcomes can be avoided entirely by instructing a professional such as a solicitor to correctly prepare and formally register your lasting power of attorney.

For anything further, one of our specialists would be delighted to meet you either in our office or in your own home to talk through your requirements and answer any questions. Please contact us at any time.

My mother is in the early stages of dementia, can she still make a lasting power of attorney?

A solicitor will usually be able to establish whether or not a person is capable of make a lasting power of attorney. A large proportion of people who might be considered by some as being unable to make a lasting power of attorney through lack of mental capacity could actually make one, at least in the early stages of diseases such as dementia.

If there is any doubt, a medical opinion can be considered. In cases where the lasting power of attorney is being contested, for example by a family member, it may be necessary for the matter to be decided by the court of protection if the dispute cannot be resolved by other means. In such cases, it is crucial to obtain medical evidence from the outset.

Time is of the essence. It is very important that individuals with declining mental capacity seek urgent legal advice from a solicitor as soon as possible.

For anything further, one of our specialists would be delighted to meet you either in our office or in your own home to talk through your requirements and answer any questions. Please contact us at any time.

Joint and severally versus jointly

The differences between a joint appointment and a joint and several appointment should be considered when appointing attorneys in your lasting power of attorney.

When making a joint appointment:

  • joint attorneys must always act together and not separately;
  • the lasting power of attorney will terminate if any one of the attorneys disclaims, dies, becomes bankrupt (bankruptcy only applies to property & financial affairs lasting power of attorney), or lacks capacity;
  • unless the lasting power of attorney specifically states otherwise it will also terminate with the dissolution or annulment of the marriage or civil partnership between the donor and the attorney; &
  • joint appointments may provide a safeguard against possible abuse, since each attorney will be able to oversee the actions of the other(s).

When making a joint and several appointment:

  • that joint and several attorneys can all act together but can also act independently if they wish; &
  • the lasting power of attorney will not be automatically terminated by the disclaimer, death, bankruptcy, dissolution/annulment of marriage/civil partnership, or incapacity of one attorney. In these circumstances the lasting power of attorney would continue and the remaining attorney(s) can continue to act.

Your may wish to appoint your attorneys to act jointly in respect of some matters and jointly and severally in respect of others. It is worth noting that the court may not accept this arrangement if it believes that such an arrangement fetters the lasting power of attorney by providing the attorneys with unreasonable discretion. It is, therefore, very important to seek legal advice in this regard to avoid your lasting power of attorney being rejected by the court when it is registered.

For anything further, one of our specialists would be delighted to meet you either in our office or in your own home to talk through your requirements and answer any questions. Please contact us at any time.