What is a lasting power of attorney?
A lasting power of attorney (LPA) is an incredibly important document which enables you to appoint one or more people to make decisions on your behalf should you become unable to do so. When you make such an appointment you are giving a person this ability, and so you are referred to as the ‘donor’. The person appointed is referred to as your ‘attorney’.
It is crucial to remember not to wait until things are difficult. In fact, if you don’t have the capacity to understand the LPA when it is made, then it can’t be made. You might well think of a LPA as part of generally organising your affairs. Every single adult should have their LPA's in place and in particular with regards to the Health and Welfare document you should ensure your GP has a copy of this so they can ensure a note is kept with your medical records.
There are two types of LPA and both are required to be put in place given they cover entirely different aspects of your life:
Health and Welfare; and
Property and Financial affairs.
It is crucial that each person has both types of LPA in place, and it is absolutely acceptable to appoint the same attorney/s in both if you wish. (There is an exception to this: a trust corporation can be an attorney for a finance and property LPA, but not a health and welfare LPA.)
In a health and welfare LPA, which can only be used once it is registered AND where a medical professional has confirmed you have lost your mental capacity (this can be temporarily or permanent), your attorney will make decisions relating to:
your daily routine (e.g. what you eat and what clothes you wear);
where you live and moving into a care home;
medical care you receive; and
life-sustaining treatment (if you have specifically permitted your attorney to make decisions on this).
In a property and affairs LPA, which can also be used, if, where you wish, you have lost your physical capacity in some way, or simply wish your attorney to step in and start assisting with certain aspects of your life as well as in those instances where you have lost your mental capacity. In this instance, your attorney will make decisions relating to:
paying your bills;
collecting your benefits;
selling your home;
managing your investments; and
making financial gifts to your relatives and close friends.
You must be over 18 and have mental capacity in order to make a LPA. Your attorneys must also be over 18 and would typically be your spouse/ partner/ adult children but can be anyone you choose and most importantly trust.
What are the benefits of having a LPA?
There are a number of reasons why you may wish to make a LPA:
Certainty – you can ensure that the person or people that you want, rather than a stranger or people you do not trust, make decisions on your behalf.
Reassurance – it can be comforting to know that if you are not able to make a decision for yourself, you already have a mechanism in place for someone else you trust to do this for you.
Saving time and money – without a LPA it can be very time-consuming and expensive for family and friends to obtain a similar power to act for you if you lose mental capacity.
Openness and discussion – making a LPA can prompt you to have important discussions about your future which you might not otherwise have.
When a LPA comes into effect
A property and affairs LPA can only be used when it is registered with the Office of the Public Guardian. It is advisable for either you as the donor, or one of the attorneys, to do this as soon as it is signed so that there is no delay when it is actually needed.
A health and welfare LPA can only be used once the form is registered with the Office of the Public Guardian and you have lost the mental capacity to make decisions about your own welfare.
Making a LPA
An LPA is created by filling out either or both of the following forms:
You must read, fill in, and sign Part A of the LPA form in the presence of a witness. The witness cannot be the attorney you are appointing. It is also necessary to include a signed statement from any attorneys being appointed, which confirms that they understand the duties of an attorney.
Finally, there must also be a LPA certificate. This certificate confirms that you understand the purpose of the LPA, that no fraud or pressure is being used to make you create it, and that there is no other reason why the LPA should not be created.
This document must be signed by someone who is not:
the person making the LPA;
a member of their family; or
the person being appointed as an attorney.
The person signing must be someone who:
is over 18;
has known you for over 2 years; or
is a professional with a relevant expertise, such as a social worker, solicitor, or medical professional.
Revoking a LPA or EPA
A LPA or EPA (enduring power of attorney) can be revoked at any time by signing a deed of revocation and sending a copy to the Office of the Public Guardian. You should also tell your attorneys that the deed has been revoked.
What happens when I die?
When you die your LPA will no longer be valid and your attorney will no longer be able to make decisions on your behalf. These duties will pass to the Executors of your Will. Many people choose the same people to be both their attorneys and their Executors. Not only do these tend to be their most trusted friends or relatives, it provides a seamless transition in decision-making when they die.
Is there any fee payable to Register the LPA?
The Office of the Public Guardian is a government body and will charge a registration fee also known as an 'administration fee' when you apply to register the LPA. It is always advisable to register the LPA even where you do not anticipate it being needed. The reason being that the registration process as an absolute minimum can take three to months to complete. It can even be longer. Typically, when the LPA is needed time is of the essence and neither you nor your Attorney's generally have 'time to wait' for the registration process' to be completed. However, they have no choice as the documents cannot actually be used until they have been registered.
The Office of the Public Guardian typically charge a fee of £82 per document to process the registration but you can apply for that fee to either be waivered or reduced where you satisfy certain criteria.
It is always advisable to obtain legal advice and assistance when setting these documents up to ensure you do not make any mistakes which could either result in the LPA not being effective or being rejected due to a simply administration error or due to lack of clarity for instance.