What is a Lasting Power of Attorney (LPA)?
An LPA is a legal document which allows you to appoint one or more people to have legal authority to act on your behalf should you lose the ability to make decisions for yourself. These people are called your attorneys
Why do I need an LPA?
There may come a time when you lost the ability to manage your financial affairs or make decisions about your own health and welfare. That could be due to a serious accident, dementia, or some other condition affecting your physical or mental capacity.
If your mental or physical health are affected by an accident or a medical condition, and you can no longer manage on your own, your family do not automatically have the legal authority to step in and manage your affairs. Without an LPA, your family would have to make an expensive and time-consuming court application.
When should I create an LPA?
An LPA is an important way of planning for the future. You can only make an LPA while you still have mental capacity. The best time to make an LPA is when you are fit and well.
An ordinary power of attorney will not work because it automatically becomes invalid if you lose your mental capacity.
There are two types of LPA:
Property and Financial Affairs LPA
Health and Welfare LPA
What is a Property and Financial Affairs LPA?
This LPA gives your attorneys authority to make decisions on your behalf about your property and financial affairs.
For example, this LPA can give your attorneys the power on your behalf to:
- Buy or sell your property
- Open, close or operate you bank building society and other investment accounts
- Access your financial information
- Claim, receive and use all benefits, pensions, allowances and rebates
- Receive any income, inheritance or other entitlement
- Deal with your tax affairs
- Pay your mortgage, rent and household expenses
- Insure, maintain and repair your property
- Invest your savings
- Make limited gifts to your family and friends on birthdays, weddings and other appropriate occasions and continue regular donations to charity
- Pay for private medical care and residential care or nursing home fees
- Apply for any entitlement to funding for NHS care or nursing home fees
- Use your money to buy a vehicle or any equipment or other help needed
When can my attorneys use a Property and Financial Affairs LPA?
Your attorneys can only use the LPA after it has been registered by the Office of the Public Guardian.
What is a Health and Welfare LPA?
This type of LPA allows you to choose people to act on your behalf and make decisions about your health and personal welfare, when you are unable to make decisions for yourself.
Your attorneys may make decisions about your medical treatment, but the attorneys cannot make decisions about life-sustaining treatment unless you state this in your Health and Welfare LPA.
Decisions your attorneys can make on your behalf might include:
- Medical matters (for example, giving or refusing consent to medical examination and treatment)
- Arrangements needed for you to be given medical, dental or optical treatment
- Where you should live and who you should live with, including perhaps moving not sheltered housing or a care home. Your day-to-day care, including what to eat and wear
- The assessment and provision of any community care service
- Accessing personal information about you such as medical or legal records
- Whether you should take part in any social, leisure or educational activities including taking you on holiday or authorising someone else to do so
- Your personal paperwork and any correspondence received
- Complaints about your care or treatment
When can my attorneys use a Health and Welfare LPA?
Your attorneys can only use the LPA after it has been registered by Office of the Public Guardian. This LPA must not be used by our attorneys until you have lost mental capacity.
Who should I appoint as my attorneys for either type of LPA?
For each type of LPA you should make sure you choose adult attorneys who you can trust to act in your best interests and who have the skills and ability to carry out the necessary tasks. For each type of LPA you should generally appoint at least two attorneys or one attorney and a replacement in case the chosen attorney cannot act.
The people you choose as attorneys under your Property and Financial affairs LPA must not be bankrupt.
You can appoint your husband, wife or civil partner as your attorney, but the appointment will be cancelled automatically f your marriage or civil partnership ends. If they were the only one appointed, this would mean that you would need to create a new LPA. This could cause issues if you had already lost capacity.
If you own your property jointly with your spouse or civil partner you should avoid appointing them as your only attorney because this can cause problems if your property is sold in the future.
Your attorneys can choose to stop acting at any time in the future. You should plan for co-attorneys and substitutes so that you will always have a valid attorney.
How many attorneys can be appointed?
For each type of LPA you can appointment as many attorneys as you wish. We would not usually recommend more than two or three, as any more can make decision-making and accountability difficult. If you appoint more than one attorney, you should think about how you would like your attorneys to act.
How can my attorneys make decisions on my behalf?
Jointly
This means that the attorneys must make all decisions together. This can delay decisions that need to be made at short notice. Also, if the attorneys cannot agree, or if one of them can no longer act as an attorney, for example because of divorce, death or loss of mental capacity, the LPA may have to be cancelled. We do not usually recommend joint appointments.
Jointly and severally
This means that attorneys can make decisions either together or separately. This might be useful, for example, if one attorney is not available to make a decision at a certain time. If one attorney cannot act, the remaining attorney is able to continue to make decisions. This means that if, for example, one attorney dies then the LPA can continue. However, there may be a risk of decisions being taken which are not approved by all attorneys.
Jointly for some decisions, and jointly and severally for other decisions
This means that your attorneys must make certain decisions together whilst they can make other decisions either together or separately. You will need to set out clearly how you want this to work in practice but we rarely recommend such complex arrangements as they may be difficult to operate and may not be approved by the OPG.
Can I appoint a substitute or replacement attorney?
Yes, and we recommend that you do. They would only act if one or more of your original attorneys died, became bankrupt, chose not to act, lacked mental capacity or you had divorced them or dissolved your civil partnership. You can appoint a replacement for all of your original attorneys, or you can specify that you wish your replacement only to replace a specific attorney.
You do not have to appoint any substitutes. However, if you only appoint one attorney and you do not appoint a substitute, your LPA will end when your only attorney can no longer act. You will then need to create a new LPA. You will only be able to do so if you have mental capacity at that time.
You cannot appoint replacement attorneys after your LPA has been signed. You also cannot appointment replacements for your replacement attorneys. Your attorneys cannot be given the power to appoint replacement attorneys themselves. Your replacement attorney will need to inform the Office of the Public Guardian before being entitled to act on your behalf.
Will my attorneys be paid for acting on my behalf?
You can decide whether or not you want to pay your non-professional attorneys. In our experience most people chose not to do so! For each type of LPA, the attorneys are only entitled to be reimbursed for out-of-pocket expenses incurred in carrying out their duties. If you would like to pay your non-professional attorneys to act, then this should be recorded in the LPA document. You should discuss payment with your attorneys, and you may wish to record in your LPA any agreement made to avoid any confusion later.
Who are the certificate providers?
For each type of LPA a certificate provider is someone who must make a declaration in your LPA that:
You understand the purpose and scope of the LPA
No fraud or undue pressure is being used to induce you to make the LPA; and
There is nothing else that would precent the LPA from being created
The certificate provider must also confirm that he/she has discussed with you the contents of the LPA without your attorneys being present.
There can be two types of people that can provide a certificate for your LPA:
A knowledge-based certificate provider is someone independent who has known you for the past two years.
A skills- based certificate provider is someone who has relevant skills and expertise such as a specialist paralegal or solicitor, barrister, healthcare professional or registered social worker.
Your certificate provider(s) cannot be:
An attorney or replacement attorney of this LPA or any other valid LPA or enduring power of attorney you have made;
A member of your family or your attorney’s or replacement attorney’s family;
Your business partner or employee pr a business partner or employee of your attorney or replacement attorney; or
An owner, director, manager or employee of a care home where you live or a family member of any of those people
How does an LPA become ready to use?
For each type of LPA there are rules that govern how the LPA is signed by you, your certificate provider(s) and your attorneys. There must be followed very carefully.
The signed LPA must then be registered before it can become valid. Your attorneys must not act under an LPA until it has been registered.
We normally recommend that you begin the registration process immediately after your LPA is signed to avoid any delay in your attorneys being able to make decisions on your behalf at a time when they might need to act urgently.
You will need to sign additional registration forms for each LPA, which we will prepare on your behalf.
We will also arrange for notices to be sent to the “people to be told” (if any) when the application to register your LPA is made. The Office of the Public Guardian will also notify your attorneys that the LPA is being registered and they will have an opportunity to object.
The registration process takes a minimum of 8-9 weeks and can take considerably longer.
If registration is not carried out immediately after the LPA has been signed then there is a risk that if the attorneys need to act urgently on your behalf, they will be unable to do so. Just because the LPA is registered, there is no need to use it.
Can my attorneys do whatever they like once they start acting under my LPA?
Even if there are no conditions or restrictions in your LPA, your attorneys cannot do whatever they like. They are still governed by a set of principles which ensure your best interests are protected.
I’m currently a director of a company or a trustee of a trust. Can I use my LPA to delegate directorship or trusteeship to my attorneys?
Special rules apply where you are a director or trustee. If you intend to delegate these functions, please speak to us and we will advise you further.
The absence of a will can cause problems
For a small investment of time and money you can choose exactly what you want in your Will, protecting your loved ones whilst enjoying peace of mind.