A Lasting Power of Attorney (LPA) is a legally binding Government-backed document that allows you (the Donor) to appoint a trusted friend or family member of your choice (the Attorneys), to make decisions for you, should you lose mental capacity or no longer wish to make decisions for yourself. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions (you lack mental capacity).
• You must be 18 or over and have mental capacity (the ability to make your own decisions) when you make your LPA.
• All LPA’s are managed through the Office of the Public Guardian (OPG)
and it’s estimated that over 2 million people have already registered their LPA’s through the OPG.
Whatever your previous conversations with family, they are irrelevant if there is no LPA in place. Family and friends are powerless to act on your behalf if you become vulnerable and can no longer make decisions for yourself. Financial Institutions and Medical Teams do not insist on LPA’s to make life difficult for your family – they ask for them as a form of protection for YOU, as the vulnerable adult.
People Involved in an LPA
• Donor – the person making the LPA (client ).
• Attorney – the people appointed to act on the Donor’s behalf.
• Certificate Provider – the person who is confirming the Donor has full
mental capacity. They have to have known the Donor for a minimum of two years or be a professional person (Estate Planner or Solicitor) who is taking the LPA instruction and can verify mental capacity. If there is any doubt about the Donor’s capacity to make an LPA, a Medical Professional MUST act as a Certificate Provider (see Appendix i – Testamentary Capacity).
• Persons to be notified – sometimes Donors like other family members or
friends to be notified that they are putting LPA’s in place.
The Two Distinct Parts of an LPA
• Property and Finance LPA – allows your Attorneys to access your bank accounts, pay your bills, and make decisions about your house. Without an LPA, spouses are unable to sell a home, regardless of ownership.
• Health and Welfare LPA – This gives your Attorney the power to make decisions about your daily routine and can only be used if the Donor is no longer able to make independent decisions. Their Attorney will use the power when arranging personal care, for example, or discussing medical care with a doctor, including life-sustaining treatment. It also allows the Attorney to make decisions about care homes.
Registering an LPA
Once party involved has signed the LPA, to activate both parts, they must be registered via the Office of the Public Guardian, which costs £82.00 per document (£164.00 for both parts, per person) unless the Donor is eligible for a reduction or exemption. It takes around 8 – 10 weeks to complete registration.
Fee reductions are available for people who earn less than £12,000. You can apply for an exemption if they are on means tested (income related) benefits.
The LPA is only registered when the Office of the Public Guardian (OPG) have stamped it with ‘VALIDATED OPG’.
Choosing an Attorney
Donors can appoint up to four Attorneys. If they appoint more than one, you must decide whether they’ll make decisions separately or together.
Attorneys need to be 18, have the mental capacity to make their own decisions and ideally live in the UK (but not essential). They can be:Think about:If there is more than one Attorney, there are two ways they can make decisions:
• A relative.
• A friend.
• A professional, for example a solicitor.
• Husband, wife, or partner
Guidance When Choosing
Think about:
• How well they look after their own affairs, for example their finances.
• How well they know them.
• Do they trust them to make decisions in their best interests?
• How happy they will be to make decisions for them.
NB: Attorneys cannot be subject to a Debt Relief Order or in Bankruptcy for Property and Financial affairs LPA’s.
More Than One Attorney.
If there is more than one Attorney, there are two ways they can make decisions:
.• Separately or together – called jointly and severally – which means Attorneys can make decisions on their own or with other Attorneys.
• Together – called jointly – which means all the Attorneys have to agree on the decision and is not advisable as both Attorneys have to sign documents which can be a logistical nightmare if they live in different parts of the country or work away from home.
Donors can instruct Attorneys to make some decisions jointly, and others jointly and severally, although this can over complicate things. Simplicity is always best!
Attorneys who are appointed jointly must all agree, or they cannot make the decision. If the Donor has chosen the joint option and one Attorney passes away or loses capacity themselves, then none of the Attorneys can act and your LPA becomes invalid.
Replacement Attorneys: It is always a good idea to nominate people to replace the Attorney or Attorneys if at some point they cannot act on the Donor’s behalf anymore.
Property and Financial Attorneys (P&F): Property and Finance Attorneys make (or help the Donor make) decisions about things like:
• Money, tax, and bills.
• Bank and building society accounts.
• Property and investments.
• Pensions and benefits
They can use the Donor’s money to look after their home and buy anything they need day to day (for example, food). They can discuss decisions that affect the Donor’s living arrangements, medical care or daily routine with their Health and Welfare Attorney, if they have one. If they decide to sell the Donor’s home, discuss where the Donor will live with their Health and Welfare Attorney.
The Donors: Finances must be kept entirely separate from the Attorneys unless they have already got something in both of names like a joint bank account or they own a home together.
Managing Bank Accounts: before managing the Donor’s account, the Financial Institution will need to see the original registered LPA.
Some will accept a copy if it signed on every page by the Donor or Solicitor. The Attorney will also need to provide proof of their name and address. Banks may also ask for additional types of proof.
. Health and Welfare Attorneys (H&W)
Health and Welfare Attorneys will make decisions about things like:
• daily routine, for example washing, dressing, and eating.
• medical care.
• where the Donor lives
They may need to spend the Donor’s money on things that maintain or improve their quality of life. This can include:
• new clothes or hairdressing.
• decorating their home or room in a care home.
• paying for extra support so the Donor can go out more, for example to visit friends or relatives or to go on holiday.
Refusing or consenting to treatment: Check the LPA for instructions about refusing or consenting to treatment. They will need to:
• show the LPA to care staff.
• sign medical consent forms.
• make decisions in the Donor’s best interest
If the Donor has a Living Will or has been sectioned, the Attorney’s decisions will not override those wishes.
Spending Money on Gifts or Donations
Unless the LPA states otherwise, Attorneys can spend money on:
.• gifts to a Donor’s friend, family member or acquaintance on occasions when they would normally give gifts (such as birthdays or anniversaries).
• donations to a charity that the Donor wouldn’t object to, for example a
charity they’ve donated to before.
Attorneys must for any other type of gift or donation, even if the Donor has given them before. These include:
• paying someone’s school or university fees.
• letting someone live in the Donor’s property without paying market rent (anything they pay below market rent counts as a gift ).
• interest-free loans.
Buying and selling property – Attorneys can sell property or rent it out, however they would need to get legal advice first.
Making a will – Attorneys can apply for a statutory Will if the Donor needs to make a will but can’t do it themselves. Attorneys are
unable to change a Donor’s existing will.
Power of Attorney – When Someone Has Already Lost Mental Capacity
To become Deputies, relatives need to apply to the Court of Protection – The Planning Bee can help you through this process. If someone who needs help with their financial affairs lacks capacity and has not appointed an Attorney, a Deputy can be appointed by the Court of Protection.
Acting Without Power of Attorney
To set up a Lasting Power of Attorney (LPA), a Donor must have sufficient mental capacity to understand and direct their financial affairs. If they suffer from a progressive condition such as Alzheimer’s and have left it too late to complete and register an LPA application, someone needs to apply to the Court of Protection to appoint a Deputy. NB: Once they have lost capacity, the family can only apply for the Property and Finance LPA.
Enduring Power of Attorney (EPA)
EPAs set up before October 2007 can still be used to control the property and financial affairs of the Donor. However, the system changed in 2007 and no new EPAs have been created since then.
Court Fees and Expenses
Applying to be a Deputy is more expensive than applying for an LPA. The court fee is £400 and other fees, including the cost of a solicitor to prepare the application. It can run into several thousand pounds, plus there an annual charge. The process takes much longer than applying for Power of Attorney and a medical report is normally required.
As well as an application fee, Deputies are obliged to pay an annual supervision fee to the Court. This can be £35 (if they are a financial
Deputy managing less than £21,000) or £320 if they are responsible for a larger amount. They will also have to pay a £100 assessment fee.
Clients Frequently Asked Questions
Do I need a Lasting Power of Attorney?
A Stroke, accident, head injury or brain disease can happen at any age, causing loss of mental capacity. Without an LPA in place, The Court of Protection will take control of your finances, and Social Services would have the power to decide where you live
What happens if I don’t have a Lasting Power or Attorney?
Without an LPA, loved ones cannot access your bank accounts, sell your house, or choose where you can live. This would cause great stress if they are unable to visit you due to location, or they are reliant on your income to pay household bills, maintain property or fund dependent relatives.
What is a Deputyship Order?
If you have already lost mental capacity, loved ones would have to apply through the Court of Protection for a Deputyship Order, which is a long and costly process. During this time, your bank accounts would be frozen, and family may need to fund your household bills or care fees themselves.
How many Attorneys can I have?
We recommend you don’t have more than four Attorneys. It is always advisable to have at least two Attorneys, as if one becomes incapacitated, someone else is on hand to take control. You can also appoint a Replacement Attorney, meaning that if your original Attorneys pass away before you, or are no longer able to act due to illness or incapacity themselves, your replacement can step in and take over.
Do I lose control as soon as I make my Lasting Power of Attorney?
Providing you have made your LPA with full mental capacity; YOU choose how and when your Attorney’s can act for you in relation to your Property and Finances. It can be as soon as your LPA is registered, or only on loss of mental capacity. Your Attorney cannot make decision in relation to your health and welfare unless you have been formerly diagnosed by a member of the medical profession as having lost mental capacity.
What is a Living Will?
This is a legal statement from the Donor about which medical treatments they don’t want. You’ll need to give this to care staff along with the LPA.
Can my Attorney take my money?
Your Attorney has a legal duty to act in your best interests. As a safeguard, if someone thought that your Attorneys were using your
money for their own benefit, they could contact The Office of the Public Guardian, providing proof of any wrongdoing.
What happens when I die?
When you die, your LPA dies with you. Your assets will be frozen and at that point, your Executors take over.
What do DoLs mean?
The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005 and apply to England and Wales only. Deprivation of Liberty means taking someone’s freedom away. The safeguards aim to provide protection for vulnerable people who are admitted to hospital or a care home, when they lack the capacity to consent themselves to the care or treatment they need.