Lasting Powers of Attorney
For those who are looking to plan for the future, it is a good idea to consider creating Lasting Powers of Attorney. If you are writing your Will or creating an Advanced Decision, then Powers of Attorney would complement these documents nicely. However, creating Lasting Powers of Attorney is an important step, and you should not create them without access to crucial information. We hope this guide is a useful summary. You can also visit our FAQs page here.
Some people would prefer to retain control over their affairs if they become unable to deal with things themselves due to age or illness. Ordinarily, the local council, the courts and their next of kin may all have a say in their affairs and property. But this may not suit everyone, and takes control away from the person concerned. This is where Lasting Powers of Attorney (LPA) come in.
What are Lasting Powers of Attorney and what do they do?
Lasting Powers of Attorney are legal documents, registered with the Office if the Public Guardian, that give power to trusted loved ones to look after a person’s affairs. There are two types; one deals with property and finance, the other, healthcare. They are separate, so if a person wanted to appoint someone to take care of their property and finances, but not their healthcare, only one Lasting Power of Attorney is needed.
How do LPAs work?
The person creating the LPA is known as the Donor. The Donor can nominate trusted Attorneys to deal with their affairs. Donors usually appoint up to four close family members, but close friends or neighbours can also be Attorneys. The important thing is that, while the Donor is capable of managing their own affairs, the Attorneys can only step in with the Donor’s permission. However, if the Donor loses their mental capacity, then the Attorneys can deal with their affairs. This is more secure than the Donor struggling on alone once they have lost capacity. However, if the Donor regains their capacity at a later stage, they can resume control of their affairs.
Proving Mental Capacity/Incapacity.
In LPA cases where Attorneys can only act when the Donor loses capacity, the loss of capacity can be difficult to prove. That is why many Donors give their Attorneys authority to act on their behalf (with their permission) while the Donor still has capacity. A letter from a Donor’s GP following a capacity assessment would confirm whether the Donor has capacity.
An important point to note here is that a person is assumed to have capacity until it is shown otherwise. Similarly, just because a person makes a bad decision, this does not automatically mean that they lack mental capacity.
Mental Capacity.
Mental capacity is a person’s ability to make decisions for themselves. This sounds simple, but making a decision involves understanding the decision, weighing up options, communicating the decision, etc.
There are a lot of factors that may affect a person’s ability to make a decision, including illness (such as an infection), an ongoing condition (such as dementia), or a learning difficulty which may affect a person’s ability to understand. A person may have capacity at some points but not others.
If you would like to check your own mental capacity, or you are concerned about a loved one, you should contact your GP in the first place.
Creating an LPA – things to consider.
Firstly, decide who your Attorneys will be and make sure that they agree to be your Attorneys. We will need their full names and addresses.
Next, decide how you would like your Attorneys to be able to act – should they always agree on every decision, or can they act independently? It may be difficult to get all of your Attorneys to agree on everything.
Then, decide when you would like your Attorneys to step in – only when you lose capacity, or anytime after the LPA is registered (with your permission)?
If we are creating the Healthcare LPA, we will ask you whether you give permission to your Attorney’s to make life-changing decisions, e.g., decisions relating to end-of-life treatment.
You should consider any instructions to your Attorneys, or any preferences that you may have, regarding your financial affairs or your healthcare in the future. These can be recorded as part of the LPA.
You will need to arrange a time when you and your Attorneys can meet to sign the LPA form, in the presence of a witness. The witness must also sign.
Could an LPA be forged?
No system is perfect, but there are various checks in place to prevent fraud against the Donor.
Firstly, each signature must be witnessed by an independent witness. The witness must have known the Donor for at least two years, and cannot be one of the Attorneys.
Secondly, there is an option to nominate independent third parties to be notified of when the LPA is registered, so that they can raise any concerns they may have.
Thirdly, the Donor should nominate an additional trusted independent person (with their agreement) to sign each LPA as the Certificate Provider. They are signing to confirm that the Donor has discussed the LPAs with them and that there has been no fraud or duress as far as they are aware. The Certificate Provider should provide their full name and address.
Costs.
It currently costs £82 to register each LPA with the Office of the Public Guardian (OPG). However, reduced registration fees can apply if the applicant (the person paying the fee) can show that they are receiving certain benefits.
Our fees for drafting LPAs are extremely reasonable. We currently charge in the region of £150 for a single LPA. However, if a couple wanted to create both LPAs, i.e., two LPAs each, then we will be happy to offer a reduced fee. Please get in touch to discuss our fees in more detail.
LPA vs. Advanced Decisions (Living Wills).
Advanced Decisions (AD) are legally binding documents that set out your wishes in relation to medical treatments, should you become unable to communicate your wishes in the future. The scope of LPAs are wider than Advanced Decisions. However, if you are in the process of creating an Advanced Decision, it is a very good idea to also create LPAs. Similarly, if you are thinking of creating LPAs then you could also consider an AD. The two types of documents are not exclusive; they complement each other.
Ending an LPA.
LPAs come to an end automatically if:
The Donor passes away.
The last (or only) attorney passes away.
But they can also be ended by choice – such as if the Donor still has/regains capacity and wishes to end the LPA. To do this the Donor should complete a deed of revocation and send it to the OPG. Again, we can assist with this – please contact us for more information.
We hope that this guide has been useful, but of course there is no substitute for speaking to us in person. Please contact us here if you would like to proceed with creating LPAs. If you have any questions, please see our FAQ page. If you have a more specific question, please get in touch.
