What is a Lasting Power of Attorney?

Setting up 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, or make decisions on your behalf. It might be used if you’re suddenly unable to manage your affairs – for example, if you develop dementia, you are taken ill or you are involved in a serious accident which has affected your judgement.

The document is designed to offer you peace of mind, so you know that someone responsible, of your choice, will be taking care of your affairs if you’re unable to do so any more. This could include making sure your partner and children are taken care of, mortgage payments continue to be made, and that you’re able to pay for any medical treatment you might need.

It’s important to remember that you can only set up an LPA when you’re still able to make your own decisions – that you have the mental capacity to make an important decision about your future.

If you swiftly lose mental capacity and you haven’t got an LPA in place, your family may have to go through a long, drawn-out and often expensive process through the courts to take control of your finances and wellbeing.

What are the two different types of LPA?

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

  • Health and Welfare
  • Property and Financial Affairs

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.

Property and Financial 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 your health care.

When you set up your LPAs, you can decide if your attorneys can start their duties immediately or not until a time when you’re no longer able to manage your finances.

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

An Ordinary Power of Attorney allows you to appoint someone to act on your behalf regarding property and financial affairs. An Ordinary Power can be for something specific like buying a house, and it can be for a temporary period – for example, if you need cover during a hospital stay or a holiday.

Enduring Powers of Attorney (EPA) were replaced by Lasting Power of Attorneys in October 2007. However, if you made and signed an EPA before October 1, 2007, it may still be valid.

Like a Property and Financial Affairs LPA, an EPA covers decisions about your property and any money-related matters.

If you want to appoint someone to help you with your Health and Welfare decisions, you need an LPA. The other types only cover property and finance.

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

It is advisable to do so, yes. Much like with your will, you need to legally specify who you want to take care of your money and affairs if you’re suddenly unable to do so. Just because you’re married or in a civil partnership does not mean that your spouse 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 or make decisions on your behalf is to set up an LPA for both Finance and Property and Health and Welfare, naming them as your attorney. An LPA and EPA are only valid whilst you’re alive. An Ordinary Power is only valid whilst you have mental capacity. After you die, your will determines who is responsible for managing your Estate, your Executor(s), and who will receive your money and property.

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 act ‘jointly’ or ‘jointly and severally’. They can be family or friends but should always be people you trust.

‘Jointly’ means all the appointed attorneys must agree unanimously on every decision, however big or small. If one can no longer act, none of the other attorneys will be able to act either unless the LPA clearly states your instructions.

‘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 to set up a Lasting Power of Attorney?

When you’re comfortable with your choice of attorneys, you can start the process of setting up your LPA.

  • You can apply on the .Gov website
  • Alternatively, you can contact the Office of the Public Guardian for more information and an application pack.
  • You can set up your own LPA without using a solicitor, and this could save you legal fees – or you can use the .GOV channels. An LPA is a powerful legal document and unless you’re very confident with legal terms, you may not want to do this yourself.

You and your chosen representative/s must sign all of the forms together at the same time, and then a 'certificate provider' must sign the form to verify you understand the document, and all the legal ramifications behind it.

The certificate provider must be impartial and someone you have known for two years or more. They also must be at least 18 years old, and have mental capacity. Alternatively, they can be a professional who is familiar with your medical or social situation, such as a doctor, social worker or solicitor.

Registering a Lasting Power of Attorney document

Your form has to be registered 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 2019)

Either you or one of your attorneys can register the forms. You should expect to wait for up to 10 weeks for the LPA to be registered on the condition the form doesn’t contain any mistakes.

Once the document has been registered, the original will be sent back to you stamped with the official stamp of the Office of Public Guardian. It will say: ‘Validated – OPG’.

Cancelling or amending a Lasting Power of Attorney

You can cancel an LPA at any time, even if the application has been registered – however, you must have the mental capacity to make this decision, and 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.

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

If you’re appointed as a Lasting Power of Attorney with several other people and you’re worried some individuals aren’t acting in the best interests of the person they’re supposed to be caring for, there is help available. The Court of Protection can cancel an LPA if worried parties can provide proof that an attorney isn’t behaving in the best possible way.

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