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What are Lasting Powers of Attorney?

Jan 03, 2020

What is power of attorney

A lasting power of attorney (LPA) is a legal document that allows you to give someone you trust the legal power to make decisions on your behalf in case you later become unable to make decisions for yourself.

The person who makes the LPA is known as the ‘donor’ and the person given the power to make decisions is known as the 'attorney’.  As with a will, an LPA can be set up by a solicitor or by the individual themselves, but to be valid it has to be registered with the Office of the Public Guardian, and this currently costs £82 unless you qualify for an exemption.

When should you set up a lasting power of attorney?

Lasting powers of attorney can only be set up when the donor has the mental capacity to make decisions. If the donor loses capacity then it’s too late to set up an LPA.

If it is likely that a person may lose capacity soon then it is important to get the LPA registered without delay as this process can take up to 10 weeks, and if there are any errors in the submitted LPA then they can be picked up sooner rather than later. If there is an error, and the person loses capacity before it’s resolved, then the LPA cannot be set up. If someone does their own LPA and it has to be resubmitted for registration because of an error, then there is a further charge of £41.

Who should set up a lasting power of attorney?

A lasting power of attorney is advisable for anyone who might lose capacity in the future, but generally it is a good idea for everyone to have one set up in case they lose capacity because of, for example, a head injury. It can be registered at any time but does not come into effect until or unless the donor loses capacity (in the case of the health and welfare LPA).

Why set up an LPA?

Many people don’t realise that their next of kin has no legal entitlement to manage their affairs without an LPA in place, so having to make decisions on their behalf can become prolonged and significantly more expensive.

Types of LPA

Since 2007 there have been two types of lasting power of attorney:

  • Health & Welfare.
  • Property & Financial Affairs.

Prior to 2007, there was only one type of LPA – an enduring power of attorney, which covered both of these two areas together.

The Health & Welfare LPA gives your attorney the power to make decisions for you about things like your daily routine and personal care, medical care, residential care and life-sustaining treatment. This can only be used when you are unable to make your own decisions.

The Property and Financial Affairs LPA gives your attorney the power to make decisions for you about managing your bank account, paying your bills, drawing your benefits and pension and selling your home. This can be used as soon as it’s registered, with your permission. 

Choosing your attorney(s)

Your attorney must be 18 or over, have mental capacity and, in the case of a Property and Financial Affairs LPA, not be declared bankrupt or subject to any debt relief order (DRO).

You can choose a relative, spouse, professional (e.g. solicitor) or friend to be your attorney but they need to be someone you trust to look after your best interests and be capable of making decisions on your behalf. Think about how well you know them and whether you are confident they would make the right decisions for you.

It is advisable to discuss your wishes in detail with your proposed attorney so that they are clear on what you want to happen should you lose capacity. You can also place restrictions in an LPA on what an attorney can do, for example limiting the amount of money they can withdraw at a time. 

You also need a certificate provider; someone other than your attorney, who will sign the LPA before the attorney signs, to confirm that you know what you are doing and that nobody is forcing you to make the LPA. If possible, they should discuss the LPA with you in private before they sign to ‘certify’ the LPA.

Your certificate provider should be at least 18 years of age and be someone who has known you well for at least two years; perhaps a friend or work colleague, or a professional person; but someone you trust and with whom you can have an honest conversation about the implications of your LPA before you sign.

There is a long list of people who cannot be a certificate provider, but in summary, this cannot be a member of your family or any of your attorneys’ families; your boyfriend or girlfriend regardless of whether or not they live with you; an employee or business partner of yours or of one of your attorneys; or anyone connected with a care home where you live, or a member of their families.

Where to get more information

The Office of the Public Guardian can be contacted for help and more detailed information:

 

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