What is a Lasting Power of Attorney (LPA)?
An LPA lets you (the ‘Donor’) appoint one or more people (the ‘Attorneys’) to help you manage your affairs or to make decisions on your behalf if you are unable to do so yourself.
Why is it important to make an LPA?
If you lose your mental capacity no-one, not even your spouse/civil partner, has the authority to make decisions for you. If you do not have LPAs that provide your loved ones with such authority, they will have to make an application to the Court of Protection for a Court Order appointing them as your Deputy. This can take many months and, in the meantime, no-one will be able to make decisions for you and/or assist you with your affairs. The cost of an application is also significantly higher than the cost of an LPA, not only in terms of the initial application for the Deputyship Order but also in annual costs that a Deputy must incur.
Who can make an LPA?
You must be 18 or over and be able to understand the implications of the powers you are giving under the LPA. You do not have to live in the UK or be a British Citizen to make an LPA.
What can your Attorneys help you with?
There are two types of LPA:
• Property and Finances – this allows your Attorneys to do things such as pay your bills, manage your investments, operate your bank account and sell your property; and
• Health and Welfare – this allows your Attorneys to make decisions about things such as medical treatment, your diet, where you live and how you spend your time. You can even authorise your Attorneys to make life-sustaining treatment decisions for you, if you wish.
You can have either or both types of LPA. Your Attorneys under each could be the same, but they do not have to be.
When can my Attorneys act?
Unless you specify otherwise, your financial Attorneys can use their powers as soon as the LPA has been registered with the Office of the Public Guardian (OPG). This is even while you still have capacity to make financial decisions for yourself. This does not mean that they automatically start making all financial decisions for you straight away, it just means they can make decisions, if you need them to. This can be helpful if you are unwell or on holiday for an extended period of time.
Your welfare Attorneys can only use their powers once (a) the LPA has been registered with the OPG and (b) you are not able to make such decisions yourself.
How do I make an LPA?
An LPA must be made using a specific form. There is a different form for each of the two types of LPA. Before completing the form(s) you will need to have thought carefully about the three categories of people who will perform different roles in relation to your LPA:
• Attorneys – these are the people who are appointed to assist you with your affairs and make decisions for you. You can have up to
4 Attorneys named in the first instance, with additional replacement Attorneys named too;
• Notified Person – these are people you can elect to notify that you are registering an LPA. You do not have to notify anyone, but there are various reasons why someone might wish to do so in any event; and
• Certificate providers – this is an independent person who signs your LPA to confirm that you understand the implications of making this, you are doing this of your own free will, there is no fraud involved in the creation of the LPA and there is no other reason why it should not be created. This can be a professional, such as a solicitor or doctor, or it can be someone who is not related to you (perhaps a friend, neighbour or colleague) but has known you well for over 2 years and is willing to sign such a declaration.
You will also need to consider the decisions you would like the Attorneys to make, how they should make those decisions and whether there should be any restrictions on what they can do.
Once the form has been completed, it must be signed in a very specific order and then registered with the OPG. Registration can be done straight away, or you can elect to allow your Attorneys to register the LPA when you are losing or have lost mental capacity. Registration takes 6 to 10 weeks, depending on how busy the OPG are, so electing to hold off with registration could cause detrimental delay in your Attorneys being able to assist
Who checks that my Attorneys are acting properly?
You should not appoint anyone as an Attorney that you do not trust implicitly. Selecting a trustworthy Attorney who has the capabilities and time required to manage your affairs is key. That being said, the OPG oversees Attorneys. If a complaint arises about the way an Attorney is exercising their powers, the OPG will launch an investigation. If they are concerned that an Attorney has breached their duties, acted beyond the powers given to them or has failed to act in the Donor’s best interests, the OPG will refer the
matter to the Court of Protection.
Drafting your Lasting Power of Attorney can be a complicated business. You are strongly advised to seek specialist legal advice to ensure that you have considered every angle and that the final documents are legally binding and reflect your exact wishes.
We understand that sometimes our client’s circumstances prevent them from visiting us in our offices. This is not a problem for us, we are happy to visit client’s in their own home, hospital ward or residential care home, and have implemented coronavirus health and safety measures.
For further information, please contact Catherine Causey on 01626 202404 or email firstname.lastname@example.org.
WBW Solicitors has offices in Newton Abbot, Torquay, Paignton, BoveyTracey, Exeter, Launceston, Honiton, Sidmouth and Exmouth, all with private client advisers available to assist with Wills, Lasting Powers of Attorneys, Trusts and other legal matters.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.