Powers of Attorney
What are Lasting Powers of Attorney (LPAs)?
Lasting Powers of Attorney (LPAs) are documents which allow you (the ‘Donor’) to appoint a person, or a number of individuals, to have a legal right to act on your behalf in relation to your affairs (your ‘Attorneys’).
There are two types of LPAs which cover very separate aspects of your affairs: Property and Financial Affairs & Health and Welfare. With both documents, you can appoint up to four individuals to act on your behalf and up to four replacements.
Before either document can be used, they must be registered with the public body who govern them and the actions taken by Attorneys, the Office of the Public Guardian (‘OPG’).
You are only able to make an LPA whilst you are still capable of making decisions for yourself (i.e. you have the ‘mental capacity’). For LPAs it is required that an independent person signs the document itself to confirm that you have the capacity and this person is known as a ‘Certificate Provider’. It is often difficult to know if you are starting to lose capacity and sometimes it requires an assessment from a GP or a specialist.
If you want to look after the affairs of someone who has already lost their mental capacity then it may not be possible for them to make an LPA. There may still be options available to you such as applying to become that person’s Deputy and this is something our specialist ‘Court of Protection’ team can assist you with.
What are the different types of LPA?
As mentioned above, there are two different types of LPA which govern the separate aspects of your life and affairs. Depending upon your circumstances, you could decide to make just the one type of document or both. You do not have to make both types of LPA at the same time and there is no requirement to have the same Attorneys on both documents.
A Property and Financial Affairs LPA can give someone the authority to deal with your finances, act in legal proceedings for you and even buy or sell property on your behalf. A Health and Welfare LPA can give someone the authority to deal with and make decisions about your health care treatment, where you might live, your day to day care including what you should wear and what you eat, and access to your personal information. You can make a Health and Welfare LPA which deals with all aspects of your personal wellbeing, or only certain aspects of it.
Can I control the decisions my attorneys make and restrict their powers?
In both LPA documents, there is a section which allows you to include ‘Preferences’ and ‘Instructions’ for your Attorneys consideration when making decisions on your behalf and there is no limit as to how many you include.
‘Preferences’ are an expression of your wish and they allow you to give your Attorneys guidance about the decisions you would like them to make. Preferences need to relate to the type of LPA you are making but can be anything such as the type of investments you would like them to make, the bank they use or the area you wish to live in.
Preferences are not legally binding so if there is something you have a really strong opinion about you might wish to include this as an ‘Instruction’ which does bound the Attorneys. Examples of the types of Instructions you can use are such as your Attorneys cannot sell certain assets on your behalf or that you cannot be moved in to a care home unless a decision is made by a medical professional. There is also a specific section in the LPA for Health and Welfare which allows you to determine whether your Attorney(s) can make decisions on your behalf regarding life sustaining treatment.
Who can I appoint as an attorney?
You are free to choose who you wish to appoint as your Attorney(s). Your Attorney(s) can be friends, relatives or even a professional. It is not advisable to appoint anyone who has a history of being poor with money, particularly with a Property and Finance LPA. As standard, we carry out bankruptcy searches on your behalf on all Attorney(s) appointed under this type of LPA and we will let you know if there are any results. If an Attorney has an undesirable financial history there is a risk that they would not be able to manage your finances appropriately for you. A person who is on the Disclosure and Barring Service’s barred list cannot act as an attorney unless they are a family member and they are not getting a fee to be your attorney. They will break the law if they do. You should always choose people that you trust completely as they can potentially have a huge amount of power over your affairs. As mentioned above, it is also possible to add replacement attorneys who will act in the event that one or all of, your Attorney(s) are unwilling or unable to act.
When can my attorneys act?
With your permission, once registered, your LPA for Property and Financial Affairs can be used by your Attorney(s)
on your behalf. They can do this by providing a certified copy of the document with all of the institutions you are
associated with. Should you lose mental capacity, your attorneys are able to start, or continue, to use the document
to deal with your financial affairs.
Once registered, due to the personal nature of the decisions, the Health and Welfare LPA can only be used by your
attorneys if and when you lose mental capacity.
How will my attorneys act?
Where you are appointing more than one attorney, you can choose whether they are to act ‘jointly’, meaning that they
have to agree with all decisions together, or ‘jointly and severally’ meaning that they can act together or independently.
What is the procedure for applying for an LPA?
There are a number of prescribed forms which need to be completed in order for an LPA to be prepared. There is a strict
process set down by the OPG which includes a special order in which the documents must be signed and requires the
involvement of a Certificate Provider as mentioned above. You are able to nominate an individual to be notified when
the document is sent to be registered. The OPG are known to be very strict about the procedure and it is important that
all correct information is given. In the event that they are not happy with the application, they can raise questions or
may refuse to register the LPA whilst still keeping the application fee.
How long will the process take?
Following your meeting with a member of the Wills & Trust team, we aim to provide you with a draft version of the
documents within seven working days. Once you have had the opportunity to review the documents and approve them,
it is then required that we meet with you again to sign them and your Certificate Provider will also need to sign. Once
signed by you, the documents are usually sent to each of your Attorneys individually by post to sign and return to us along
with some information regarding their appointment. Once the documents are completed, we submit the application for
registration to the OPG. Currently the OPG are taking approximately 12 weeks to register LPAs but this can vary.
How much does it cost?
We usually prepare LPAs on a ‘fixed fee’ basis. There is an additional registration fee set by the OPG which is currently
£82 per person, per LPA. Depending on your circumstances, you are sometimes able to apply for a reduction or
remission of the court fee and we can assist you with applying for this which often requires sending in some information
regarding your finances.
What if I change my mind?
There are a number of ways to bring an LPA to an end. You are able to cancel your LPA at any point provided that you
still have mental capacity. You could then make a new LPA with different attorneys if you so wish. An Attorney who no
longer wishes to be an attorney can complete and submit a form to the OPG and the Donor which would bring their
appointment to an end.