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01978 367 830
01244 812109
Since October 2007 if you wish to create a Power of Attorney that will continue in force and can be used by your Attorneys even after you have become mentally incapable you must now create what is known as a Lasting Power of Attorney. If you have previously created an Enduring Power of Attorney under the old system this will continue to be valid and can be used but you cannot create a new one in this format.
A Lasting Power of Attorney (LPA) is a legal document that allows someone you trust to make decisions on your behalf and in your best interests. LPA’s give you more control over what happens to you if you lack the ‘mental capacity’ to make decisions for yourself or you want someone to make certain decisions for you.
‘Mental capacity’ means the ability to make a decision at the time it needs to be made. People can lose mental capacity because of a condition such as a dementia, mental health problem or a learning disability.
There are two types of LPAs: one covers property and financial decisions and the other deals with decisions about your health and welfare.
Think about what would happen if you had serious accident or a stroke or developed dementia or a mental illness. You might lose the ability to make some, or all, decisions. Making an LPA will help you to prepare in case this happens
There are many advantages to making an LPA:
It’s a chance to talk to family and friends about how you want to manage your finances and your health and welfare.
It will give you peace of mind and allow you to stay in control.
It’s quicker and cheaper than other ways of handling your decisions – such as applying to the Court of Protection.
The ‘donor’ makes the LPA and appoints one or more ‘attorneys’ to make decisions for them.
When you create an LPA, you also need someone to act as a ‘certificate provider’. You must nominate a Certificate Provider who will sign a different part of the Form to confirm that you are aware of what you are doing, you are doing it without duress and that they have discussed the Power with you beforehand. The Certificate Provider can be someone who has known you for a long time or one of a number of specified Professionals such as a doctor or solicitor.
You additionally name ‘people to notify’, who will be told when the LPA is registered.
Certificate providers and people to notify are extra safeguards to make sure the LPA truly represents yours wishes.
1. Property and financial affairs
Under a property and financial affairs LPA, you appoint an attorney or attorneys to take responsibility for such things as:
You needn’t have lost mental capacity to use this kind of LPA; your attorneys can start acting for you straight away if you wish them to. That might be useful if you want someone to manage your finances while you’re in hospital or abroad for a period of time.
2. Health and Welfare affairs
A health and welfare LPA covers decisions such as:
Unlike a property and financial affairs LPA, your attorneys can use a health and welfare LPA only when you no longer have mental capacity to make decisions for yourself. For both types of LPAs, you can decide the things your attorneys can and can’t make decisions about.
Whether or not you still have mental capacity, an attorney can only use an LPA once the Office of the Public Guardian, part of the Ministry of Justice, has registered it. An unregistered LPA cannot be used.
You can make and LPA and register is later (or an attorney and register if for you) but it’s a good idea to register the LPA as soon as you have created it. Sometimes LPAs contain mistake but these can only be fixed while you still have mental capacity.
Remember: LPAs only come into effect when you have lost mental capacity or – in the case of property and financial affairs LPA – when you decide.
NO. If you don’t have mental capacity, you cannot make an LPA nor can anyone else do it
for you.
The only other way someone else can act on your behalf is if they apply to the Court of Protection to become your deputy.
A deputy has similar powers to an attorney. However, a deputy must send annual reports to the Office of the Public Guardian (OPG) and pay an annual fee. Their costs will come out of your assets. It’s a lot more time-consuming and expensive than having an LPA.
Anyone over 18. For a financial-decisions LPA, your attorney also cannot be bankrupt. You should be sure you trust the person and that they know you well enough to make decisions for you. You could choose a relative, friend or solicitor (who is likely to be paid for the role).
It’s important to make sure that your attorneys fully understand their role and that they are willing to act on your behalf.
Yes. If you choose more than one attorney, you must decide how they will make decisions.
It’s a good idea to choose some replacement attorneys in your LPA.
Replacement attorneys only start acting for you if the main attorneys can no longer fulfil the role or want to step down.
If you’ve lost capacity, and your attorneys can no longer act for you and there are no replacement attorneys. OPG will have to cancel your LPA. This might mean that someone would have to apply to the Court of Protection to become your deputy.
Our fee is:
The office of the public Guardian charges a fee of £82.00 per application.
It is advisable and necessary for every Attorney to document everything they do and to keep all receipts and other documents for future reference.
For more advice and information on the duties and responsibilities of an Attorney please ask a solicitor at Cyril Jones & Co or alternatively, visit https://www.gov.uk/lasting-power-attorney-duties.
An attorney for property and financial affairs cannot be a person subject to an order of bankruptcy or a person subject to a debt relief order.
There are a number of points common to both types of LPA which are important to note:
1. The Form is very much more detailed than the old Enduring Power of Attorney Form and great care must be taken in completing it.
2. The Power cannot be used until it has been registered with the Office of the Public Guardian (OPG). There is a set registration process which must be followed and the OPG charges a fee (currently £82.00 per LPA). This process takes at least 26 weeks.
3. You can appoint one or more than one Attorney. If you appoint more than one you must say whether they are to act together or independently. You can say that they can act independently in some things but that they must act together in other things.
4. You can appoint a replacement Attorney who will only be able to act if there is a problem with the main Attorney. If you appoint more than one replacement you must say whether they are to act together or independently. You can say that they can act independently in some things but that they must act together in other things.
5. You can restrict the powers that you grant, and you can give guidance as to how those powers are to be exercised.
6. As part of the registration process, you should nominate at least one and as many as five people to be notified when the Application for Registration is made. These can be anyone who is close to you.
7. You must nominate a Certificate Provider who will sign a different part of the Form to confirm that you are aware of what you are doing, you are doing it without duress and that they have discussed the Power with you beforehand. The Certificate Provider can be someone who has known you for a long time or one of a number of specified Professionals such as a doctor or solicitor.
8. Once the Power has been registered, subject to any limitation or restriction stated in it, it can be used by your Attorneys immediately. It does not, however, prevent you from making decisions or dealing with things yourself if you wish to do so and many people sign these Powers in case, they do become incapable.
It is our view that you should consider at the very least creating a Property & Affairs LPA. Whether you need to create a Health and Welfare LPA will depend upon your personal and family circumstances. However, failure to create a power could mean that if you do become incapable suddenly (e.g. following a stroke) your family may need to apply to the Court of Protection for someone to be appointed a Deputy and this is a more complicated and expensive process.
We can prepare all the forms you need and deal with registration on your behalf.
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