"Making a Lasting Power of Attorney is just as important as putting a Will in place."
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document by which a person gives another person the authority to make certain decisions on his or her behalf. The person making the LPA is called the ‘Donor’ and the person being given the authority is the ‘Attorney’.
LPAs were introduced by the Mental Capacity Act 2005 and were brought into effect on the 1st October 2007. LPAs replaced the old Enduring Powers of Attorney (EPAs), although these can still be registered and used. However, it is important to note that EPAs only allow your attorneys to make decisions relating to property and financial affairs. If you would like to give authority for health and welfare decisions, you will need to prepare this type of LPA. This is covered in more detail below.
The Online Lasting Power of Attorney form is availble here
What decisions can Attorneys make?
There are two types of LPAs. You can choose to prepare just one or both types.
1. A Property and Financial Affairs LPA allows your attorney to deal with any decisions relating to your property or financial affairs. This can cover such matters as paying bills, dealing with the bank, collecting benefits, selling your house, giving instructions to solicitors and so on.
2. A Health and Welfare LPA allows your attorney to make decisions relating to such matters as decisions on treatment, care, medication, where you live, the care home you live in, and can even extend to whether you would like your attorney to make decisions relating to life sustaining treatment or not.
A Lasting Power of Attorney (LPA) is an important document. The decision as to who to appoint as your attorney is not to be taken lightly. Your attorney should be trustworthy, have the appropriate skills to make the proposed decisions, and you should have full confidence that he or she will act in your best interests.
You can choose to appoint up to four attorneys and up to four replacement attorneys. An attorney must be over the age of 18, and for the Property and Financial Affairs LPA your attorney must not have been declared bankrupt, or be subject to ongoing bankruptcy proceedings.
If you appoint more than one attorney, you can appoint them to act together (jointly), or so that they can make decisions independently as well as together (jointly and severally). You can even instruct your attorneys to make some decisions jointly and other decisions independently.
When can Attorneys act?
In order for a LPA to be valid, it must first of all be registered with the Office of the Public Guardian (OPG). You are able to register your LPA immediately it has been granted, or some people decide to wait to register their LPAs until a later date. Our expert solicitors at NewLaw will discuss with you at the time of preparing your LPA whether it is suitable to delay registration or whether you should consider registering your LPA straight away.
Once registered, the LPA for Financial and Property Affairs can be used immediately.
The LPA for Health and Welfare on the other hand, can only be used by your attorney once you have lost the mental capacity to make your own decisions.
Our first step of the process will be to arrange a convenient time to discuss the LPA over the telephone with you, or we are always happy to visit you at your home if this would put you more at ease.
You will need to provide us with full names, addresses and dates of birth for both you and your attorneys. The Donor and each Attorney will need to sign the forms in the presence of a witness.
You will usually need to choose a person to be notified that you are preparing the LPAs. This person will simply receive a notice at the point of registration, although they are entitled to object if they feel you should not be preparing the LPA.
The final requirement for the completion of the LPA is that a certificate is signed by a third party, called the Certificate Provider. The Certificate Provider must either be an independent person chosen by you, who has known you personally for more than two years, or a person with a professional skill, such as a solicitor or medical professional, and they must sign a section in the LPA to confirm that they believe that you:
Once all sections have been signed, the LPA can be registered. The OPG is in charge of registering all LPAs, for which a charge £110.00 per LPA is applied, although they will offer a reduction based on income, or a complete exemption if certain benefits are received. Click here for the Online Lasting Power of Attorney form or call one of our expert lawyers to discuss your LPA needs on 0333 003 1909
What happens if you have not made a LPA or EPA?
If you lose capacity to make your own decisions without a Lasting Power of Attorney (LPA) in place, then it may be necessary for an application to be made to the Court of Protection for them to appoint a suitable person to make decisions on your behalf. This person is known as a Deputy.
The Court is far more likely to appoint a Deputy in relation to property and financial matters. Where an issue relates to health and welfare, the Court is more reluctant to appoint a Deputy to make these decisions and will usually leave matters to social services.
The process of applying to the Court of Protection is lengthy and costly and it may result in someone being appointed who you would not necessarily have chosen to manage your affairs.
For expert advice contact our specialist team, who will guide you with options on making the right decision for your circumstances.
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