What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legally-binding document which lets you appoint one or more people to help you make decisions, or make decisions on your behalf.  Once set up, they can be used should you suddenly be unable to manage your own affairs – for example, if you develop dementia, you are taken ill or you are involved in a serious accident which has affected your ability to make decisions.

The Property and Financial Affairs LPA is designed to offer you peace of mind, so you know that someone you trust, will be taking care of your financial affairs if you’re unable to do so any more. It’s important to remember that you can only set up an LPA whilst you still have the mental capacity to make important decisions about your future.

When you set up an LPA for Property and Financial Affairs you can decide straight away what duties your nominated people (attorneys) can help you with now, or only when you no longer are able to make decisions for yourself.

What are the two different types of LPA?

There are two different types of Lasting Power of Attorneys (LPAs):

• Property and Financial Affairs LPAs focus on decisions about your property and finances. For example, settling your debts, paying off your mortgage, managing your bank accounts and savings and even deciding if your house needs to be sold to cover the costs of specialist health care.
• Health and Welfare LPAs focus on the personal aspects which affect your health and wellbeing, such as the treatments you have, where you’re taken care of, and if you need to be looked after in a nursing or care home. The Health and Welfare LPA can only be used when you no longer have the ability to make your own decisions.

Are there other kinds of Power of Attorney?

Yes, in addition to LPAs, there are also:

• Ordinary Powers of Attorney
• Enduring Powers of Attorney (EPA). These were replaced by LPAs in October 2007 but may still be valid. See our article What is a Power of Attorney for more detailed information.

Do I need to set up a Lasting Power of Attorney if I’m married or have a partner?

Just because you’re married or in a civil partnership does not mean that your partner will be able to make financial decisions for you if you’re incapacitated. The only way to guarantee they will be allowed to help you make decisions regarding your finances and health is to set up the appropriate LPA.

Can I use my next of kin to make decisions for me?

A person who is nominated as the next of kin by you has no legal rights to make decisions or act on your behalf. The next of kin is primarily used by emergency services and medical professionals to know who they should keep informed about an individual’s condition and treatment.

What happens if you don’t have an LPA?

If you don’t have an LPA in place and later become unable to make decisions for yourself, nobody will be legally able to make those decisions for you. This can make things difficult for your family as they won’t be able to access your financial accounts to pay bills or make important decisions about your care. When this happens, someone may need to apply to the Court of Protection to become a deputy. This gives similar powers to that of an attorney, but it is a time-consuming and expensive process.

Can I have more than one person acting for me on an LPA?

Yes, you can appoint more than one person, and these people can either act ‘jointly’ or ‘jointly and severally’. They can be family or friends, but should always be someone you trust.

• ‘Jointly’ means all the appointed attorneys must agree unanimously on every decision, however big or small. If one attorney can no longer act, none of the other attorneys will be able to act unless you have clearly specified in your LPA what will happen in that situation.
• ‘Jointly and severally’ means the appointed attorneys can make decisions on their own or together. This is the option most people choose because it is the most practical.

How do I set up a Lasting Power of Attorney?

Once you have decided how you want your LPA to work and you have chosen the person or people you trust to help you make decisions you are ready to set up your LPA. You can set up the LPA online by using the GOV.UK site. You can create an LPA account and come back to the document whilst you are getting all the details together. The site provides a very clear step by step process to follow.  You may also wish to have a solicitor review the LPA before it is signed, although this is not a mandatory requirement.

When the LPA form is completed, you must gather your chosen attorney’s together so that the forms can be signed in the right order and at the same time. Then a 'certificate provider' must sign the form to verify you have not been pressured into signing and that you fully understand the document and all the legal ramifications behind it.

What is the certificate provider?

The certificate provider must be impartial and someone you know well (for at least two years) or be a professional person such as a doctor, social worker or solicitor. The certificate provider cannot be one of the people named in your LPA as an attorney.

Registering a Lasting Power of Attorney document

Once signed by you, your attorney(s) and certificate provider, your LPA must be registered with the Office of the Public Guardian (England) before it becomes a legally-binding document. It cannot be used before it is registered. There is a cost to register each LPA. This cost is currently £82 at the time of writing. (September 2020).

Either you or one of your attorneys can register the forms. If you are using the online service, you can follow the instructions to submit the LPA for registration and pay online. You should expect to wait for up to 10 weeks for the LPA to be registered. If there are any mistakes identified on the form, everything will be returned to you and you will have to resubmit after you have corrected the mistakes. There is often a cost for resubmitting corrected forms. Once the document has been registered, the original will be sent back to you stamped with the official stamp of the Office of the Public Guardian. It will say: ‘Validated – OPG’.

Can I make a copy of the registered LPA?

You will not be provided with copies of your LPAs from the Office of the Public Guardian. If you need to send the document away to provide evidence that someone is acting as an attorney for you or to give the attorney(s) a copy for their records, you should consider arranging for a copy to be made.

Cancelling or amending a Lasting Power of Attorney

You can cancel an LPA at any time, even if the application has been registered as long as you still have the mental capacity to make this decision.  If you cancel the LPA you must tell all your appointed attorneys. You’ll also need to tell the Office of the Public Guardian so they can take your document off their register.

What to do if your attorneys don’t agree?

If two people on a power of attorney disagree, then they will look to you if you still have mental capacity. Should you no longer have mental capacity, they may have to involve the courts to find an appropriate way forward.

Reporting a concern about an attorney

If you disagree with another attorney's decision or believe they may be acting outside their powers, you should raise your concerns with them. If you have any concerns that an attorney, appointed to help you, may be misusing your money or not making decisions that are in your best interests, you should contact the Office of the Public Guardian.

How long do Lasting Powers of Attorney last?

LPAs are only valid whilst you are alive. After you die, your Will determines who will act as the Executor(s) of your Estate and who will receive your money and property.

An LPA ends automatically if:

• You die
• Your attorney dies (if you only have one)
• One of you becomes bankrupt (although this depends on individual circumstances, so please seek legal advice if this happens)
• If you’re married or in a civil partnership with your attorney, and the partnership is dissolved or annulled
• If your attorney(s) suddenly lack the mental capacity to make decisions for you

This article was written on 21 September 2020; all information was correct at the time of writing.

For up-to-date information, regularly check the Office of the Public Guardian website.