Guide to Lasting Power of Attorney
What is an LPA?
The term Lasting Power of Attorney (LPA) refers to the legal document which allows an individual (referred to as a Donor) to nominate a person or people (referred to as Attorneys) to make decisions on their behalf should they reach a state where they no longer have the mental capacity to make certain decisions. Lasting Powers of Attorney can be divided into two groups, one that relates to the financial well being of the Donor and one which refers to the health care and general welfare of the Donor.
- Property & Financial Affairs LPA: gives your attorney the power to deal with your property and financial affairs. Typical tasks include collecting your pension, benefits or other income, paying your bills, dealing with your bank or building society, completing tax returns, buying & selling property, making certain gifts.
- Personal Health & Welfare LPA: gives your attorney powers and instructions concerning your future welfare and medical treatment. Typical tasks include arranging your meals, buying your clothes, fixing your daily routine, deciding whether its time for you to move home – maybe into residential or nursing care – giving consent to or refusing life sustaining treatment on your behalf.
You do not need to have both LPA’s (Welfare and Property & finance). You can choose to put only one of these in place. If you choose both, you can select different Attorneys if you wish. Each Lasting Power of Attorney however needs to be detailed on separate forms and registered separately.
Creating an LPA is an opportunity to put in writing your personal wishes about what you want to happen should your abilities deteriorate, whilst remaining free to continue making your own decisions for the time being.
Who should be the Attorneys?
The Attorney must be someone whom the Donor trusts and can include friends, relatives and professional advisers. The Donor can choose to select one or more Attorneys to make all the decisions on their behalf or they can appoint different Attorneys to make decisions relating to different areas of their life and affairs. If you appoint more then one person as your Attorney, you can require your Attorneys to act either jointly, or jointly and severally or jointly in respect to some matters and jointly and severally with respect to others.
Certification
LPA’s must be certified by an independent third party (the certificate provider) before the attorneys can sign to accept their appointment. The certificate provider must state that in his or her opinion the Donor has mental capacity to create the LPA and is not being subjected to any pressure from any other party to enter into the LPA.
Who can provide the certificate?
There are two categories of people who can provide a certificate for the LPA.
- Someone who has known the Donor personally for at least 2 years preceding the date at which the LPA certificate is signed.
- Somebody on account of their professional skills and experience (e.g. a solicitor) feels reasonable competent to provide such a certificate.
Frequently Asked Questions
Who can make an LPA? Any person over the age of 18 who has full mental capacity can make an LPA.
Who can be my attorneys? Anybody who has mental capacity, is over the age of 18 and is not a declared bankrupt can act as an attorney. If you do not want to burden family and friends then your could choose to appoint a solicitor.
Can I appoint 2 attorneys? Yes you can. You can appoint as many attorneys as you want, although they must be over the age of 18.
Can my daughter or son make an LPA on my behalf? No. Only you can make the LPA.
My son lives abroad; can he still be an attorney? Yes he can – however consider whether he would be suitable. What would happen if an emergency arose and the Attorney was needed at once?
Can I use the LPA, once all parties have signed it? No. It must be registered with The Office of Public Guardian before it can be used. The registration involves completely separate forms and submitting a fee and takes about 10 weeks. The power cannot be used during the registration process.
What if I already have an Enduring Power of Attorney (EPA)?EPA’s granted before the 1stOctober 2007 remain valid until the donor dies. No new EPA’s were granted after this date. It is not possible to change an EPA into an LPA, instead a new LPA would need to be drafted and the EPA revoked.
Is it possible to change the names of the Attorneys once the documentation has been registered? As long as the Donor is of sound mind it is possible to change the nominated Attorneys. It is usual for the Attorney who is no longer required to be informed and a formal letter and a new document drawn up.
Can a married couple have a joint LPA? As LPA’s are personal to each Donor it is a requirement that each person wanting an LPA has their own.
Can a person refuse to act as an Attorney? Yes, it is possible for a person to refuse to act as an Attorney but this should be done before the documentation is signed and registered. Once the individual has agreed to accept this position and signed the forms they are bound to act accordingly if the need arose, however, if at this point they refuse to act it could end up in court and they may be prosecuted.
Can you cancel a Lasting Power of Attorney? You can cancel your LPA if you have the mental capacity to do so. If there is a dispute about whether your LPA has been cancelled, the Court of Protection has the authority to make a decision. The LPA for Property & Financial Affairs is automatically revoked if either the donor or Attorney(s) are made bankrupt. Also, if the donor names their spouse or civil partner as an Attorney then divorce or dissolution automatically revokes the LPA.