Lasting Power of Attorney
Lating Powers of Attorney are a far better alternative to having your financial affairs administered when you are no longer able to deal with these personally.
Lasting Powers of Attorney, are not limited to empowering others to make decisions on your financial affairs on your behalf. They are registerable on execution, rather than at a stage when mental capacity of the donor begins to diminish. They also make provision for the making of health care decisions after mental capacity has been lost.
Advice and information on Lasting Powers of Attorney
- What is an LPA?
- A Lasting Power of Attorney (LPA) is an important legal document which, due to its nature, allows you ('the donor') to plan ahead and set out in advance what you want to happen with your personal affairs or in relation to your health and personal welfare arrangements and who is to make these decisions on your behalf ('the attorney'). Before it can be used the LPA must be registered with the Office of the Public Guardian (OPG). The Donor can register the LPA while they have the mental capacity; the Attorney can register the LPA at any time.
- Who can make an LPA?
- Any person aged 18 or over, with the capacity to do so, can make an LPA. You cannot make an LPA jointly with another person; each person must make his or her own LPA. No one can make an LPA on your behalf but should you need help you can contact a legal adviser.
- How to make an LPA
- To make an LPA, you must use a special LPA form. We can complete the forms for you and help you to execute the documents correctly. You must remember that although the LPA can be made at any time, it can only be used after it has been registered with the OPG.
- How many types of LPA are there?
- There are now two different types of LPA, replacing the old Enduring Power of Attorney form:
- A Property and Affairs LPA - allows your Attorney to make decisions on your behalf about your property and affairs, such as bills payment, receiving your income and benefits entitlements or selling your house, all subject to your restrictions and conditions. Property and Affairs Attorneys can be asked to manage your property and finances while you are still able and when you lack the capacity.
- A Personal Welfare LPA - allows your Attorney to make decisions on your behalf about your personal welfare, such as whether to give or refuse consent to medical treatment on your behalf and deciding where you live. They can only make these decisions on your behalf when you are no longer able to make them yourself, if you are ill, unconscious or because of the onset of a condition such a dementia. A Personal Welfare Attorney cannot make decisions on your behalf about your property and affairs.
- The LPA Form
- There are currently three parts to complete on the LPA form.
- Part A - The Donor's Statement:
This is where your details are inserted, as well as the details of the persons you want to appoint to make decisions for you in the future and how you want them to act on your behalf. This is also the part where any restrictions or conditions on the powers you grant can be expressed and where you are asked to give the names of the persons you want to be notified of the registration of the LPA.
- Part B - The Certificate Provider's Statement:
Not everyone can be a certificate provider. The form specifies who qualifies for the purpose.
The certificate provider must speak with you privately to make sure that you understand the powers you invest in your Attorneys and that there has been no fraud and no pressure was put on you to make the LPA. If you have not named anyone to be informed of the registration of the LPA in the allocated section in part A then you will need two certificate providers.
- Part C - The Attorney's Statement
All your chosen Attorneys will need to provide their details and confirm that they understand their legal duties if they need to act as your Attorneys. All your named Attorneys will need to sign this section and ask for someone to witness their signatures.
- Who can register the LPA?
- While you are able to decide for yourself you can register your own LPA, or your Attorneys can do this on your behalf when you can no longer decide. However, the LPA cannot be used unless it was registered.
- Registering the LPA
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Upon registration of the LPA the person registering it must complete 2 forms:
- LPA001 - Notice of intention to apply for registration of a Lasting Power of Attorney - aimed at notifying the persons you have named of the registration of the LPA so that they can object if they feel that you were in any way under pressure to make it.
- LPA002 - Application to register a Lasting Power of Attorney - this must be sent to the OPG with the LPA and the appropriate fee.
Provided there are no enquiries of the applicant a registration date will be set for 6 weeks after the date the OPG was given notice to allow for any objections and that date will be communicated to the applicant.
If the OPG receives any objections to register, these will have to be resolved before the registration can take place, which can delay the proposed date for registration.
Within 5 days after the 6 weeks waiting period the applicant will receive a copy of the registered LPA or notification that it has not been registered.
If you register the LPA well in advance before it needs to be used it is advisable that you check it from time to time to make sure that it is still valid with respect to your needs and circumstances. It is also advisable that you keep you LPA in a safe place where your attorneys can find it.
- When can an LPA be used?
- An LPA can only be used when it is registered with the Office of the Public Guardian (OPG).
- What are the risks with an LPA and what precautions can be taken?
- An LPA is a very powerful legal document and it is important to remember that the person you appoint as your Attorney(s), unless you have included restrictions in your LPA, will have the same control you have over your property and affairs (i.e. money, savings, any investments and property) or make decisions about your healthcare, welfare and where you live. When choosing an Attorney, it is important that you are confident that they know what you want and how you want them to proceed and that you are comfortable that they will be making decisions on your behalf.
It may be advisable to name more than one Attorney and to require them to act jointly (rather than jointly and severally or just severally). It is also advisable to add restrictions and / or conditions to the way they act to ensure that things are done according to your wishes, but we need to ensure the wording of these are not misinterpreted. It is best therefore to get legal advice.
An extra safeguard is to include a requirement that the actions of your Attorneys are monitored by a solicitor or accountant to whom they should present periodical reports.
- I have already made an Enduring Power of Attorney. What shall I do?
- If you have already made an Enduring Power of Attorney you may want to contact us for information on whether it should be revoked and replaced with an LPA.
- How much does it cost to make an LPA?
- We can provide you with an estimate of our costs for the preparation of an LPA. Please refer to the contact page.
- Registration fees
- A fee of £150.00 is payable for every LPA registration you want to make. This would be a disbursement payable by you in addition to our legal fees.
- Can anyone access information on the registers?
- When the applicant signs and registers the LPA they agree to a limited amount of personal information being made available under certain circumstances to certain categories of people, such a your doctor who may need to know whether a Personal Welfare LPA was registered for you before proceeding with treatment. Any one can make an application to access the register by completing a form and paying the appropriate fee.
FREQUENTLY ASKED QUESTIONS:
- 1. Do I have to live in England or Wales to make a Personal Welfare LPA?
- You do not need to live in England and Wales to make a personal welfare LPA, but you will need to be in England or Wales when your Attorney needs to use it.
- 2. Do I have to live in England or Wales to make a Property and Affairs LPA?
- You do #TJK_DL dt a:focus {font-weight:bold}not have to live in England and Wales to make a property and affairs LPA, but unless you have assets here, there may not be a need to appoint a Property and Affairs Attorney.
Please note: An LPA made in England and Wales will not be legally binding for use in other countries including Scotland, the Republic of Ireland or Northern Ireland. It will be up to institutions (such as banks) in other countries to decide whether to recognise the LPA.
- 3. Who can be an Attorney?
- It is important to choose someone you know well as your Attorney, someone you trust to act in your best interests and someone who agrees to become an Attorney. You can appoint a family member (including your spouse or partner), friend or anyone willing to act for you, providing they are at least 18 years of age.
- 4. Are there restrictions to who can be an Attorney?
- There is no restriction to who can act as your Personal Welfare Attorney as long as they are at least 18 years old. However, the person you choose as your Property and Affairs Attorney must not be bankrupt when they sign the LPA form. If your Property and Affairs Attorney(s) become(s) bankrupt in the future, your Property and Affairs LPA could be cancelled if it has been registered with the OPG.
- 5. Can I appoint more than one Attorney?
- Yes, you can appoint as many Attorneys as you wish. However, you will need to consider how you want them to act
- together; or
- together and independently of each other; or
- together in some matters and together and independently in others.
You will need to specify this on your form.
What is the difference between appointing Attorneys together or appointing them together and independently?
If you appoint your Attorneys to act together they must always act together and they must all come to an agreement before doing anything on your behalf. If one of them disagrees with a decision then that action cannot be done for you. There is always a difficulty with Attorneys acting together in that there could be delay in taking certain decisions which could have adverse effects. Also, if one of them dies or loses capacity to look after your affairs or if they simply cannot agree or work together the LPA could be cancelled.
If you appoint Attorneys to act together and independently this means that should a decision need to be made speedily and one of them is not available the one(s) at hand could still decide for you. Also, if one of them dies or lacks capacity to look after your affairs this will not result in cancellation of your LPA.
What if my Attorney does not act in my best interest?
If evidence is presented to the Office of the Public Guardian that an Attorney is not acting to the Donor's best interest they will decide on the course of action to be taken. This ranges from asking the Court of Protection to demand that the Attorney accounts for his / her actions to cancelling the LPA altogether and asking the Attorney to compensate you for any losses. Your Attorney could also be found guilty of a criminal offence for ill-treating or willfully neglecting you while in their care and could be sentenced according to their crime.
- 6. Can I name the same Attorney for my Personal Welfare LPA as for my Property and Affairs LPA?
- Yes, you can have the same Attorney for both forms of LPA
- 7. What is a named person?
- A named person is someone recorded in your LPA form who is to be notified when an application to register the LPA is made.
- 8. Why do I need to appoint named persons?
- This is another of the safeguards available to ensure that an LPA is not registered against your will and contrary to your needs.
- 9. What is a Certificate Provider?
- A Certificate Provider is someone selected by you to complete Part B of the LPA form confirming that you understood the LPA and that you have not been forced into making it against your will.
- 10. Why do I need this certificate?
- The certificate is a required part of the registration of an LPA. It is also a confirmation of the fact that you the decision of making the LPA is your own. The LPA will not be valid and cannot be registered without the certificate.
- 11. Who can be a Certificate Provider?
- There are two categories of Certificate Providers:
Category A
Knowledge certification - A knowledge-based Certificate Provider is someone that you know personally and have done so for at least two years.
Category B
Skills certification - A skills-based Certificate Provider is someone who considers that they have the relevant professional skills and expertise to certify your LPA.
The LPA form lists the following suitable skills based certificate providers:
- a registered healthcare professional (including a GP);
- a solicitor, barrister or advocate;
- a registered social worker; or
- an Independent Mental Capacity Advocate (IMCA).
You can pick someone not listed above provided they have the relevant professional skills and expertise to provide the certificate and can specify on the form what these skills and expertise consist of.
- 12. Is there anyone who cannot be a Certificate Provider?
- You cannot select anyone from the following list to be a Certificate Provider:
- a member of your or your Attorney's family;
- a business partner or paid employee of yours or your Attorney(s);
- an Attorney appointed in this form or another LPA or any EPA made by you; or
- the owner, director, manager, or an employee of a care home in which you currently live or their family member.
- 13. Can my Certificate Provider charge for providing the certificate?
- It is up to your Certificate Provider to decide whether they will charge for providing the certificate or not. Skills -based Certificate Providers are more likely to charge for their services whether they provide a certificate A or B
- 14. Can I still make decisions if my LPA is registered?
- Yes. Registration of your LPA does not mean that you lack capacity to look after your own affairs, but it may make it easier and quicker for your Attorney(s) to intervene when it is shown that you have lost capacity to decide.
