LASTING POWER OF ATTORNEY

A Lasting Power of Attorney is a legal document allowing you (the donor) to appoint others (the attorneys) to make decisions on your behalf.  LPAs are made whilst you still have mental capacity in preparation for if you ever lose that capacity.  There are two types:  Property & Financial Affairs, and Health & Welfare.

It is best to make an LPA sooner rather than later – as mental capacity can be lost at any age.  This could happen through an accident, a stroke, or a condition such as Alzheimer’s – and may happen gradually or suddenly.  By making an LPA you can choose who would make decisions for you and how those decisions should be made. 

Ideally every person should have an LPA.  You may wish to consider LPAs as being similar to insurance. You hope they aren’t needed but wouldn’t think twice about insuring your home, car or holiday to protect them financially. Similar should be thought of LPAs, we hope that they will never need to be used – but if the worst does happen, your loved ones will be glad that the LPAs are there. 

This covers decisions about the donor’s financial affairs and their property.  An attorney can buy or sell property, operate bank accounts and investments, claim welfare benefits or pensions and receive income, deal with tax affairs, pay household expenses and insure, maintain or repair property.  If you wish, a Property & Financial Affairs LPA can be used while you still have capacity.  This can be useful, for example, if your local bank has closed down and you need help setting up and using internet banking.  It can also be useful if you have mobility issues, or are on holiday or in hospital.  While you have capacity, your attorneys can only make decisions if you have given them permission to do so, and they must follow your instructions.  

This covers decisions about the donor’s personal welfare and health.  It can only come into effect when the donor has lost capacity.  An attorney can make decisions on where the donor is living, their day to day care, arrange medical, dental or optical appointments, allow access to personal information, consent or refuse any medical treatment and decide on the donor’s diet and clothing.  It also includes a section where the donor may grant the attorneys power to make decisions on accepting or refusing life sustaining treatment.  This would mean that the attorneys can speak to the doctors as if they are you, in that scenario. 

Your family or friends would have to apply to the Court of Protection for a Deputyship to make decisions on your behalf.  This is a longer and more expensive process than making an LPA, and will incur ongoing costs which an LPA does not. 

There are often problems when one member of a couple loses capacity – even if the majority of assets are in joint names.  The other spouse or partner will not be able to deal with joint accounts or jointly owned property without applying to the Court of Protection. 

Yes – you can do this via the government website, if you have the time, inclination, and a good eye for detail. 

However, if there are any errors in the application, the documents could be rejected by the OPG at the registration stage.  If this happens you could be asked to repeat the whole process, this would include paying a second registration fee and waiting several extra months for the registration process.  It is also worth bearing in mind that whilst you may be able to draw up the LPA documents and get them registered by the OPG, this is no guarantee that the documents would work in the way you would like, should they ever be needed. 

An increasing number of people are now choosing a reputable professional to draw up the documents for them.  At Steadfast Wills, Becky manages the whole process from the initial discussion through to registration, usually making a total of 3 visits to you, explaining things to your attorneys and obtaining signatures from them, and dealing with the Office of the Public Guardian (OPG) on your behalf.  We also check documents very carefully before submitting them to the OPG; in the unlikely event that any errors are found by the OPG, we would of course repeat the process at our own expense.

One or more people may be appointed.  There is no legal maximum number of attorneys, but it is not practical to appoint more than 4.  You may appoint replacement attorneys to take over in the event that the original attorneys are unable to act.

Anyone who has mental capacity and is aged 18 or over.  For Property & Financial Affairs LPAs, anyone who is an undischarged bankrupt cannot be appointed or act as an attorney. 

Who should I choose as my Attorneys? 

This is a very personal decision – they should be people who you trust completely.  It is common to appoint a spouse or partner acting either solely with children as replacements, or acting jointly and severally with children.  This may not always be possible, if there are family conflicts between potential attorneys. 

It is also possible to appoint a professional as an attorney – of course, professional attorneys usually charge fees. 

This is an independent person who certifies that at the time of signing they are aware that the donor understands what they are doing in making an LPA, and that no fraud or undue pressure is being used to influence them.  If you use Steadfast Wills to do your LPAs, Becky can often act as Certificate Provider. 

When it has been registered with the Office of the Public Guardian (OPG).  There is a registration fee of £82 per document.  You can register the LPA(s) straight away – or your attorneys can register then at a later stage.  It is recommended that you register the LPAs straight away – this is partly so that if there are any errors they can be corrected while you still have mental capacity, and partly because it takes around 5 months for the OPG to complete the registration process – or longer than that if there are any errors in the application.  If you are already starting to lose mental capacity, or have a diagnosis of early stage dementia, this delay could be inconvenient and distressing for all concerned.