A Commercial LPA will be right in most circumstances, but it is important to consider the type of business you own.

1. Sole Trader – your business is not a separate legal entity. Therefore, appointing an attorney under a Commercial LPA will be an effective way for you to make provision for the continuity of your business, in the event that you are incapacitated. Please be aware that a personal LPA for property and financial affairs may not be sufficient to look after your business interests.

2. Partnerships – check the terms of your Partnership Agreement as it may already include provision for what would happen should one of the partners become incapacitated (see below). If such a provision exists, it may already adequately provide for the continuity of the business, in which case a Commercial LPA would not be required. But if there is any doubt, then it is best to seek advice on the wording of this provision and also to ensure that any wording in your Commercial LPA does not create a conflict with the partnership agreement.

3. Directors of companies: articles of association – Very often, articles of association will provide for the termination of a director’s appointment in the event that the director loses capacity. This is often done to protect the company’s interests. Therefore, there may be no need for a Commercial LPA (See below). If you are the sole director of a small private company, the articles of association are unlikely to simply terminate the director’s appointment, or there would be no one else left to continue running the company. Therefore, a Commercial LPA would be required.