What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) enables you or indeed another person aged 18 or over (the Donor) to appoint another person or persons (the Donee or Attorney) to act on your behalf and make decisions for you if you subsequently lose your mental capacity. This has replaced the Enduring Power of Attorney (EPA) as the type of Power of Attorney that can operate after you cease to be able to make decisions for yourself. Unlike EPA’s you can chose to delegate decisions affecting your personal welfare – including health care and medical treatment decisions – as well as decisions concerning your property and financial matters to your attorney(s).

Nature of Lasting Powers of Attorney

There are two types of Lasting Powers of Attorney namely: -

Property and Financial Affairs LPA’s

Property and Financial Affairs LPA's can be used to appoint Attorney(s) to make a range of decisions – including the buying and selling of property, operating a bank account, dealing with tax affairs and claiming benefits.

Health & Welfare LPA

A Health & Welfare LPA may authorise the Attorney(s) to make decisions about where you should live, consenting to or refusing medical treatment on your behalf and day to day care including diet and dress.

Who Should I Appoint?

The Attorney is given a great deal of power over some of the most important decisions you have to make. Your choice of Attorney must therefore be made very carefully. You should appoint someone you can trust to act in your best interests. That person should also have some understanding as to how they can act and what they are required to do.

You may like to appoint a family member but you do not need to appoint the same Attorney or Attorneys to act on both the Property & Financial Affairs LPA and the Health & Welfare LPA.

If you do not have anyone you can appoint with regard to a Property & Financial Affairs LPA you may like to appoint a professional who understands the legalities and duties behind the document. The partners at Eric Robinson Solicitors would be more than happy to act on your behalf in those circumstances.

Alternatively you may like to appoint a family member together with a professional.

Can you appoint more than one Attorney?

You can appoint more than one Attorney and you can appoint them to act both jointly or jointly and individually or jointly in some circumstances and individually in others. In fact it does make sense to have two Attorneys so that if one dies and is unable to act the other can continue to act. You can also appoint a substitute Attorney if one dies or refuses to act.

What is required?

There are two separate prescribed forms one for a Property & Financial Affairs LPA and one for a Health & Welfare LPA. Both forms are divided into three parts: -

Part A- Donor Statement

This part of the form includes: -

Part B - Certificate Providers Statement

A certificate is required from an independent third party (known as a Certificate Provider) after he or she has discussed the contents of the LPA with you without, if possible, anyone else present. The Certificate Provider must confirm that in his or her opinion you understand the purpose and scope of the LPA;

No undue pressure or fraud is involved in the decision to make the LPA;

Part C - Attorneys Statement

Each Attorney named in Part A of the LPA must complete a separate statement confirming that he or she understands their duties and obligations as an Attorney.

The LPA must be registered with the Office of the Public Guardian before it can be used. A Property & Financial Affairs LPA can be used while the Donor still has mental capacity unless it specifies that it cannot, while a Health & Welfare LPA can only be used when the Donor no longer has capacity to make the particular decisions affecting their health or personal welfare.

Gifts

Gifts are not permitted to be made by the Attorney of your assets unless: -

a) The recipient of the gift is an individual who is related to or connected with you or a charity to which you actually made gifts or might be expected to make gifts.

b) The timing of the gift must be of a seasonable nature or made on the occasion
of a birth or marriage/civil partnership or on the anniversary of a birth or marriage/civil partnership.

c) The value of the gift must not be unreasonable having regard to all the circumstances and in particular the size of your estate.

If you wish you can totally restrict or exclude the ability to make any gifts or limit these.

Why is it worth having an LPA?

Making an LPA is money well spent because the alternative is costly and time consuming. If no Attorney has been appointed and you become mentally incapable, relatives or some interested person would have to apply to the Court of Protection for a Deputy to become appointed. This requires a doctors certificate, a mass of paperwork and a Hearing to prepare an Order. The costs of this can be significant. There is a Court fee of £400.00 to commence the application and a further Court fee of £400.00 on each application. There are administration costs to pay including annual administration charges up to £850 per annum, plus annual accounts have to be prepared and so possibly paid for if you use a professional. When the person dies a further charge is levied to wind up the finances along with an annual charge until the final receivers account is issued. Professional service fees will also need to be paid. All of these costs will be taken out of your resources – effectively removing financial control from your family.

How much does and LPA cost?

Please see the separate price list as to the cost of the Property & Financial Affairs LPA and/or Health & Welfare LPA as different prices apply depending on the package you choose either with or without your spouse/partner.

Neither the Property & Financial Affairs LPA nor the Health & Welfare LPA can be used unless registered at the Office of the Public Guardian. There are therefore two choices namely first to not register the Lasting Power of Attorney but permit us to keep it until such time as it is required. At that stage it can be registered but does take 6-8 weeks, or whatever the current processing period is at the Office of the Public Guardian, before it can be used or secondly the Lasting Power of Attorney can be registered and our fees for registration become applicable together with a fee of £130 fee payable to the Office of the Public Guardian for each document.