Lasting Powers Of Attorney
The Lasting Power of Attorney (‘the LPA’) was introduced by the Mental Capacity Act 2005 and came into effect on 1st October 2007. It replaces the Enduring Power of Attorney (‘the EPA’) although an EPA made before 1st October 2007 will continue to be valid.
A power of attorney is a legal document where a person gives another person or persons (the ‘attorney’) authority to make certain decisions on his or her behalf.
Types of LPAs
There are two types of LPAs:
- A Property and Affairs LPA, which allows your attorney to deal with your property and finances, as you specify
- A Health and Welfare LPA, which allows your attorney to make health and welfare decisions on your behalf, but only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment
As with any power of attorney, it is an important document and you should take care whom you appoint as your attorney should be trustworthy and have the appropriate skills to make the proposed decisions. It should be someone in whom you have complete confidence.
The attorney must be over the age of 18 and must not be an un-discharged or an interim bankrupt person.
If you appoint more than one attorney, you can appoint them either to always act together or together and separately. You may even appoint them to act jointly for some things and together and separately for others, although this should only be done with advice.
You may also choose to appoint a successor to your attorney, in case the original attorney dies or cannot act for you.
What can the Attorney do?
An attorney’s role is to make all the decisions (subject to any restrictions or conditions contained in the LPA) that you would have made yourself and in reaching these decisions, the attorney must comply with the Mental Capacity Act 2005, and the Code of Practice.
Under a Property and Affairs LPA, the attorney will commonly be able to pay bills and expenses, collect income and benefits, manage bank and building society accounts, buy and sell property, complete and submit tax returns and make gifts within the statutory limits.
Under a Health and Welfare LPA, the attorney is likely to be given power to consent or refuse particular types of healthcare, including medical treatment and may even be able to consent to or refuse life-sustaining treatment on your behalf. The attorney may also be able to decide whether you remain in your own home or move into residential or nursing care and also more day-to-day decisions such as your diet, dress or daily routine.
LPAs can be restricted or contain conditions limiting the attorney’s authority. You can also, if you wish, include guidance for the attorney in the LPA. This guidance is not legally binding but could be very helpful to the attorney.
What if you have no-one whom you could appoint? What if the person that you would like to appoint would need support to fulfil the task well?
We can help by either offering the appointment of a solicitor from Geldards, or offering to be on hand to help and support your attorney. Please ask.
The Certificate Provider
Not only must the LPA be signed by you and the attorney(s) and witnessed, a certificate must also be given by a third party, the ‘Certificate Provider’.
A Certificate Provider is an independent person chosen by you to complete a certificate contained in the LPA to confirm that in his or her opinion you:
- understand the purpose and content of the LPA;
- understand the extent of the powers you are giving to the attorney;
- are not being pressurised or tricked by a third party to make the LPA; and
- that there is nothing else that would prevent the LPA being created.
The Certificate is a vital part of the form and without it the LPA is invalid and cannot be registered. The Certificate Provider can either be someone who knows you personally and has done so for at least 2 years or a person with the relevant professional skills and expertise to certify the LPA, for example a solicitor, barrister, doctor or social worker.
Registering the LPA
An LPA, whether it is a Property and Affairs LPA or a Health and Welfare LPA, must be registered with the Office of the Public Guardian (OPG) before it can be used. There is a registration fee and the registration process is likely to take several weeks. We can give you up to date information on each, on request.
Once registered, a Property and Affairs LPA can be used immediately but a Health and Welfare LPA can only be used once it is registered and you have lost your mental capacity to make decisions.
When making the LPA, you can nominate up to 5 people to be notified of the application to register it. Those notified will have an opportunity to object to the registration if they have concerns, for example, regarding the integrity of the attorney. It is not a requirement that persons are nominated but it is advisable.
A registered LPA will be added to the Office of Public Guardian database and searches can be made by third parties to see whether an LPA is in existence.
Revoking an LPA
An LPA can be revoked by you at any time provided you have mental capacity. The attorney can also disclaim the appointment. There are also circumstances when an LPA will be revoked. These are:-
When a sole attorney dies or is made bankrupt. If two or more attorneys are appointed, the appointment of the surviving or non-bankrupt attorney will continue;
- When you die;
- When you are bankrupt (but this rule does not apply to a Welfare LPA);
- When the attorney is a spouse or civil partner and the marriage ends in divorce or the civil partnership is dissolved. The LPA may, however, specify that the appointment continues notwithstanding such divorce or dissolution.
Existing Enduring Powers of Attorney
Any EPA, validly made before 1st October 2007, can still be used but only in respect of your property and affairs. If you wish to give authority over your health or welfare you will need to make a Health and Welfare LPA.
What happens if you have not made a LPA or EPA?
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf.
Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes, you can give a person authority to make those decisions on your behalf by making a Health and Welfare LPA.
You can download general information and guidance on making a Lasting Power of Attorney from the Office of the Public Guardian website HERE.
For more detailed advice contact a member of our Private Client Team.