Lasting Power of Attorney (LPA)

When Do You Need an LPA?

A Lasting Power of Attorney (LPA) is a legal document which allows you to appoint one or more people to make decisions on your behalf, or to help you make important legal decisions. Having an LPA can be helpful when you cannot make an important decision because according to the law, you ‘lack mental capacity’. Circumstances in which one might lack mental capacity include having advanced dementia or being unconscious. Before a third party can make a decision on your behalf, they must have ‘reasonable belief’ that you cannot make the decision yourself. Your chosen attorney must always have your best interests at heart.

Requirements to Make an LPA

To make an LPA, you must be 18 or over and have mental capacity. LPAs replaced EPAs (Enduring Powers of Attorney) in 2007 though any EPA made before October 2007 remains valid. The person making the LPA is called the ‘donor’ and the person assigned to exercise the power is called the ‘attorney’ (or ‘attorneys’ if more than one is appointed).

What are the Benefits of Making an LPA?

An LPA gives the donor the peace of mind of knowing that if at any moment they should be unable to make important financial or health-related decisions, the right and most qualified persons possible, will take charge of these important affairs. An ordinary power of attorney is ineffective for more than a specifically stated number of transactions, because it is revoked immediately in the event that the donor is mentally incapable.

Types of LPA:

There are two types of LPA:

1. LPA for Financial Decisions (property and financial affairs). This type of LPA can be used even if you have mental capacity. Your attorney will be able to make decisions on a number of matters, including where and when to invest money, buy and sell property, make monthly payments, pay for repairs to your home or investment properties, etc. Your attorney will have to keep strict accounts to show all bank movements made with your money/ any investments and expenditures made on your behalf. You are free to require details of all financial transactions and expenditures made from your attorney, which is highly recommended since in the event of mental incapacity, your solicitor or family members will be fully informed of relevant financial transactions.

2. LPA for Health and Welfare. This type of LPA can only be used if you have lost your mental capacity. Your attorney would be able to make decisions on matter such as where you should reside, medical care, diet, who you should interact with, and what activities you could undertake.

Your LPA can be wide, or restrictive. Thus, you can indicate which decisions your attorney is permitted to make and specify how you want them to make those decisions.

Your Interests are Paramount

Your attorney/s must always act in your best interests. You can provide them with a guide so they can act in accordance with your values and beliefs when necessary. They must adhere to the Mental Capacity Act Code of Practice, which lists a number of principles, including the assumption that you can make your own decisions unless they establish that you cannot do so, and that they must not treat you as unable to make a decisions simply because you make an unwise decision. If you have mental capacity and you feel your attorneys are not making decisions in your best interests, the OPG will investigate the matter.

Making an LPA: The Procedure

The first step when making an LPA is to download forms from the Office of the Public Guardian (OPG) or fill in the required information online. The website https://www.gov.uk/power-of-attorney/make-lasting-power will inform you of all the information you will need to gather before commencing. This includes your name and date of birth, and the names and dates of birth of all attorneys, plus the names and addresses of the certificate provider (an impartial person who confirms that nobody is forcing you to make the LPA and that you fully understand what you are doing), and ‘people to notify’ that you have made the LPA.

How to Register Your LPA

First, fill the first part of the LPA form provided. Then fill in the part dealing with registration. Pay the fee online or by cheque, print the LPA, sign it in the indicated order, which is as follows:

1. Donor: The donor must sign section 9 and pertinent continuation sheets. Those making health and welfare LPAs must sign the statement regarding life-sustaining treatment (care, surgery, medicine or any medical aid required to keep a person alive) on page 6. If the donor is unable to sign, someone will have to sign continuation sheet A3 for you. You must be present and tell the witness to sign, and two witnesses must be present at the moment you sign the A3.

2. Donor’s Witness: The witness must sign after the donor. The signatures must be made and witnesses on the same date.

3. Certificate Provider: After 1. and 2. take place, the certificate provider must sign section 10 as soon as possible after the donor signs. It is common for the certificate provider to sign on the same day as the donor; the maximum time between both signatures is one year.

4. Attorney(s) and any replacement attorney(s): These individuals will have to sign section 11, in any order, with a witness (the donor cannot be a witness, nor can any of the attorneys, replacement attorneys or employees of a trust corporation the donor names an attorney or replacement attorney). Any attorney that is a trust corporation must sign section 4 rather than section 11.

5. Attorneys’ Witness(es): These individuals must be 18 years old or over and they must watch the signatures of the LPA. Witnesses sign after donors and attorneys, testifying that they witnessed the signatures taking place.

Send the signed form to the OPG alongside a free remission form and any evidence required to prove you are eligible to pay a reduced fee, if relevant.

Cost of Registering an LPA

Before your LPA can be used, it must be registered by the OPG. The application fee for registration of an LPA is £110. If your income is les than £12,000 or you are entitled to specific benefits, registration may cost less or you may not have to pay a fee at all.

Time for Registration

You can expect to wait between eight and 10 weeks for your LPA to be registered. The long wait can be chalked down to the need for the OPG to check that your LPA is legal and correct. The OPG can ask the Court of Protection to remove invalid instructions. If you still have mental capacity, you can cancel your registered LPA at any time. This waiting period includes a four-week safeguard which allows you to raise any questions you may have.

When does an LPA Come Into Effect?

A health and welfare LPA is effective as soon as it is registered and only if the donor is mentally incapable of making his own decisions. The situation is different with a property and financial affairs LPA, which is usually in effect once registered. However, the donor can stipulate that this type of LPA will only take effect if and when they are mentally incapable to make their own decisions. In this case, your bank/s and/or financial institution/s may require written confirmation that you lack mental capacity, before they recognise the LPA. Many donors register an LPA simply so it is ready for use if and when they lose capacity. Some donors stipulate how their mental capacity should be determined – for instance, via written medical opinion or a statement by their doctor that they are unable to make financial decisions.

How to Cancel an LPA

You can cancel an LPA at any time while you still have mental capacity. To revoke an LPA, fill in a Deed of Revocation Form (suitable examples can be found online). Sign the form and inform the attorney/s that their power to act on your behalf has been revoked. If the LPA has already been registered, send the OPG a copy of the Deed of Revocation, requesting that they remove the LPA from the register.

How a Solicitor Can Help

Because making an LPA can be a cumbersome process, a solicitor can be of great help. Not only will your lawyer ensure that all requirements for registration are fulfilled to the letter; he or she will also enlighten you on the nature and practical effects of your LPA, meeting with you and raising important questions that will enable them to personalise your LPA to the greatest extent possible and to ensure you do not relinquish more power to your attorneys than is absolutely necessary. A solicitor can also advise you on selecting the right attorneys and raise contingencies you may not have originally thought of. Your solicitor can also act as your certificate provider.

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