Lasting Powers of Attorney
A Lasting Power of Attorney is a legal document by which one person (the donor) gives another person (the attorney) authority to act in his name and on his behalf. You may already have a Will and this allows people to deal with your affairs after your death, but what would happen if you become unable to deal with your affairs during your lifetime?
Lasting Powers of Attorney were introduced by the Mental Capacity Act 2005 for England and Wales in October 2007. This act provides statutory framework to empower and protect people who may not be able to make some decisions for themselves. Potentially this could affect anybody over the age of 16 and in some cases people under that age.
There are two types of Lasting Power of Attorney (LPA):
- One is known as a Property and Financial Affairs LPA and is used when the donor wants to appoint somebody to deal with their financial affairs and property.
- The other is a Health and Welfare LPA and is used when the donor wants to appoint somebody to make welfare decisions on their behalf, such as the type of medical treatment they may want to receive and allows them to make decisions about where they might live.
LPAs are powerful documents but they are a sensible precaution against the accidents, illnesses and injuries that can incapacitate a person of any age.
Both types of LPA give the donor the opportunity, whilst they still have the mental capacity to do so, to choose somebody that they trust to make these decisions on their behalf. The documents only empower attorneys to act for you whilst you are alive they have no legal powers following your death, you need a Will to provide somebody with these powers.
You can appoint a number of attorneys to act for you and you can decide to provide these attorneys with guidance about the way in which you want them to act and place restrictions on them if you wish.
You can appoint anybody you like to act as your attorney (provided they are over the age of 18 and are not an undischarged bankrupt) and you can have more than one attorney to act for you, in fact it is a good idea to have two or three people acting for you so that one or more of them can take over if your first choice becomes incapacitated themselves. Your relatives or friends can be your attorney. The most important factor is that they are trustworthy and you trust them to look after your welfare.
You should inform your attorneys that you are going to ask them to act for you as they will also need to sign the document.
The LPA cannot be used by your attorneys until it has been registered with the Office of the Public Guardian (OPG) and this registration process can take a few weeks to complete. Either you or your attorneys can register the document.
There is a fee payable to the OPG for registration of each LPA but in certain circumstances you may be eligible for exemption or remission of all of part of this fee.
When you have an LPA drawn up you will require somebody to sign the document to confirm that you have understood it and its contents. This person is known as a Certificate Provider and can be somebody that you know well or certain professional people. This is an important safeguard for you and without it the LPA cannot be registered.
When the document is registered, you will be asked to name somebody who should be notified that the registration is to take place. This allows somebody unconnected with the document to be able to object to its registration if they have any concerns about why the document is being registered or the people named as your attorneys. They will be given detailed guidance on how they can object when they are notified.
The Office of the Public Guardian (OPG) is an executive agency of the Ministry of Justice. It is headed by the Public Guardian who is responsible for the registration of LPAs and for maintaining the register of LPAs.
If anyone has a concern or a complaint about an Attorney or the way in which the registration of an LPA has been dealt with, they can contact the OPG for advice.
The OPG produces a number of guides and publications which give full details of LPAs, the circumstances when they can be used and instructions on the procedure to register them. These can be obtained by telephoning the OPG on 0845 3302900 or they can be downloaded from their website at www.publicguardian.gov.uk.
You should seek professional advice when considering drawing up an LPA. We can assist you with drawing up the documents. We will provide the attorneys with guidance about their duties and ask them to arrange to sign the document. When you or your attorneys decide to register the document we can assist with completing the documentation required. Please contact us for further details.
Costs for Lasting Power of Attorney (LPA)
|Single LPA for Health & Welfare||£365*|
|Single LPA for Property & Financial Affairs||£365*|
|Any 2 LPAs||£700*|
|Any 4 LPAs||£1350*|
*Includes registration to the Office of the Public Guardian at £82 per LPA
The Main Points to Consider When Thinking of Enacting an LPA:
Purpose of a lasting power of attorney
A lasting power of attorney gives your attorneys authority to make decisions about your property and financial affairs when you cannot make your own decisions. This can include running your bank accounts and savings accounts, decisions about making or selling investments and selling property, and spending your money.
When your attorneys can act for you
Your attorneys can use this lasting power of attorney only after it has been registered and stamped on every page by the Office of the Public Guardian. Your attorneys can make decisions for you as soon as a lasting power of attorney is registered – both when you have mental capacity and when you lack mental capacity, unless you put a restriction in this lasting power of attorney.
The Mental Capacity Act
Your attorneys cannot do whatever they like. They must follow the principles of the Mental Capacity Act 2005.
Guidance about these principles is in the Mental Capacity Act Code of Practice. Your attorneys must have regard to the Code of Practice. They can get a copy from The Stationery Office at tso.org.uk or read it online at gov.uk/power-of-attorney
Principles of the Act that your attorneys must follow
- Your attorneys must assume that you can make your own decisions unless they establish that you cannot do so.
- Your attorneys must help you make as many of your own decisions as you can. They cannot treat you as unable to make the decision in question unless all practicable steps to help you to do so have been made without success.
- Your attorneys must not treat you as unable to make the decision in question simply because you make an unwise decision.
- Your attorneys must make decisions and act in your best interests when you are unable to make the decision in question.
- Before your attorneys make the decision in question or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieve the purpose.
Your best interests
Your attorneys must act in your best interests in making decisions for you when you are unable to make the decision yourself. They must take into account all the relevant circumstances. This includes, if appropriate, consulting you and others who are interested in your welfare. Any guidance you add may assist your attorneys in identifying your views.
Cancelling a lasting power of attorney
You can cancel this lasting power of attorney at any time before or after it is registered as long as you have the mental capacity to cancel it. Please read the guidance available at gov.uk/power-of-attorney