Lasting Power of Attorney:
A Lasting Power of Attorney is separate from a Will and is designed to give someone else the power to make certain decisions on your behalf if you are no longer able to do so.
An LPA comes in two forms, a Health and Welfare LPA and a Property and Financial Affairs LPA.
A Lasting Power of Attorney (LPA) is a legal document that you (the 'Donor') make using a special Power of Attorney form. It allows you to choose someone (the 'Attorney') you trust to make decisions about such things as your finances and property, at a time in the future when you are no longer able to, or when you may lack the mental capacity to make those decisions yourself.
You can appoint an Attorney whilst you have the capacity to do so. They can then act for you, if you later lack the capacity to look after your own affairs. However, an LPA can only be used when it is registered with the Office of the Public Guardian (OPG).
An LPA comes in two forms, a Health and Welfare LPA and a Property and Financial Affairs LPA.
A Lasting Power of Attorney (LPA) is a legal document that you (the 'Donor') make using a special Power of Attorney form. It allows you to choose someone (the 'Attorney') you trust to make decisions about such things as your finances and property, at a time in the future when you are no longer able to, or when you may lack the mental capacity to make those decisions yourself.
You can appoint an Attorney whilst you have the capacity to do so. They can then act for you, if you later lack the capacity to look after your own affairs. However, an LPA can only be used when it is registered with the Office of the Public Guardian (OPG).
Who can make an LPA?
Anyone aged 18 or over, with the capacity to do so, and who is not bankrupt can make an LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make an LPA jointly with another person; each person must make his or her own LPA.
What can an Attorney do on my behalf?
Your Attorney, using a registered LPA, will be able to make exactly the same kind of decisions you can make now about your money and property. However, your Attorney(s) cannot do whatever they like. They must follow the principles of the Mental Capacity Act 2005 which are:
• a person must be assumed to have capacity unless it is established that the person lacks capacity.
• a person is not to be treated as unable to make a decision unless all practicable steps to help the person to do so have been taken without success.
• a person is not to be treated as unable to make a decision merely because the person makes an unwise decision.
• an act done, or decision made, under the Mental Capacity Act for or on behalf of a person who lacks capacity must be done, or made, in the person's best interests; and
• before the act is done, or the decision is made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
• a person must be assumed to have capacity unless it is established that the person lacks capacity.
• a person is not to be treated as unable to make a decision unless all practicable steps to help the person to do so have been taken without success.
• a person is not to be treated as unable to make a decision merely because the person makes an unwise decision.
• an act done, or decision made, under the Mental Capacity Act for or on behalf of a person who lacks capacity must be done, or made, in the person's best interests; and
• before the act is done, or the decision is made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
Important things to consider with a Lasting Power of Attorney
1. Choosing your Attorney.
Your Attorney should be a person you know and trust and who is at least 18. Your Attorney must not be bankrupt or in the process of being made bankrupt. You can choose more than one Attorney.
2. Choosing more than one Attorney. If you choose more than one Attorney you must decide whether your Attorneys should act together or together and independently (which means they can all act together but they can also act separately if they wish). You may appoint your Attorneys together in respect of some matters and together and independently in respect of others. If you appoint more than one Attorney and do not state whether they are appointed together or together and independently, when your LPA is registered they will be treated on the basis that they are appointed together.
3. Choosing a replacement Attorney. You can name a replacement(s) in case an Attorney is unable to or no longer wishes to continue acting for you. An Attorney will be unable to act if they are bankrupt or if they are your spouse and you divorce, or they are your civil partner and you terminate the civil partnership. Your Attorney(s) can also change their mind and may not want to act for you. If this is the case, they must tell you and the Office of the Public Guardian (OPG).
4. When an Attorney can act. Once your LPA is registered your Attorney(s) can act before you lack capacity and after you lack capacity however, you may restrict your Attorney(s) to only act when you lack capacity within your LPA. There is no one point at which you are treated as having lost capacity to manage your property and affairs. Your Attorney(s) must help you to make as many of your own decisions as you can. When decisions have to be taken for you, your Attorney(s) must always act in your best interests.
5. Decisions your Attorney can make for you. An Attorney may make any decision that you could make about your property and affairs, for example buy or sell property, manage investments or carry on a business. They may also access personal information.
6. Restricting the powers of your Attorney(s) or adding conditions. You can put legally binding restrictions and conditions on your Attorney(s)' powers and the scope of their authority in the LPA. But these decisions may still need to be made and other people will have to decide for you. That could involve going to the Court of Protection and a decision being made in your best interests. However, if you are happy to give your Attorney full access to all your property and financial affairs, simply tick the general authority box.
7. Giving guidance to your Attorney. You can also give guidance to your Attorney(s) in your LPA. This is not legally binding but the Attorney should take into account your expressed wishes when they are making decisions for you, if it reasonable to do so.
8. Paying Attorneys. An Attorney is entitled to be reimbursed for out-of-pocket expenses incurred in carrying out their duties. Professional Attorneys, such as solicitors or accountants charge, for their services. You should discuss this with your Attorney and record any decision you make about paying your Attorney(s) in the LPA.
9. Notifying other people before registration. You can name up to five people to be notified when an application to register your LPA is made. You do not have to name any but if you do not, two Certificate Providers (see below) are needed and this may delay completion of the LPA. 9.1 Why do I need people to be notified? Selecting people to be notified of an application to register is one of the key safeguards of an LPA. Listing people, known as named persons, allows you to decide at the time you make your LPA who you would like to be notified that registration of your LPA is taking place. Once notified, if the people you choose have concerns about the registration of your LPA – for example they feel that you were put under pressure to make it – they can object to the LPA being registered. 9.2 You are advised to name up to five people if at all possible. You can choose family members or friends or, if you prefer, someone else such as a health or social care worker that knows you. Your Attorneys cannot be named as the persons to be notified.
10. Registering the LPA. Your LPA cannot be used until it has been registered with the OPG. Either you or your chosen Attorney(s) can apply to register the LPA. If you register it immediately it can be used straight away unless you have specified that it should only be used when you lack capacity. Orchard Wills Limited can assist with registration of the LPA, so that the LPA can be used immediately if you wish. Please note that if you wish us to register your LPA a charge applies (please see our Tariff of Charges) .
11. Changing your mind. You can cancel your LPA even after it is registered if you have the mental capacity to do so, by taking formal steps to revoke the LPA. You must tell your Attorney if you do, and if it is registered, you will need to ask the OPG to remove it from the register of LPAs.
12. The Certificate Provider. A Certificate Provider is a person that you must select to complete a Certificate in the LPA form which confirms that you understand the LPA and that you are not under any pressure to make it.
You will need to choose a suitable person to be your Certificate Provider. They can either be a trusted friend who you have known for two years or more, or they can be a registered healthcare professional, social worker, barrister, solicitor, advocate or an Independent Mental Capacity Advocate (IMCA). Please note that some professionals may make a charge for completing this Certificate.
Your Certificate Provider must not be
Please note: if you choose not to notify anyone when an application to register your LPA is made, you will need to choose two Certificate Providers.
Whilst written guidance will be provided for non professional Certificate Providers, you should be aware that your Certificate Provider will need to discuss with you your reasons for making an LPA, and to confirm that you have not been pressured into making it by your Attorney.
Please note that the Certificate is a vital part of the LPA document. Without it, the LPA is not valid and cannot be registered.
2. Choosing more than one Attorney. If you choose more than one Attorney you must decide whether your Attorneys should act together or together and independently (which means they can all act together but they can also act separately if they wish). You may appoint your Attorneys together in respect of some matters and together and independently in respect of others. If you appoint more than one Attorney and do not state whether they are appointed together or together and independently, when your LPA is registered they will be treated on the basis that they are appointed together.
3. Choosing a replacement Attorney. You can name a replacement(s) in case an Attorney is unable to or no longer wishes to continue acting for you. An Attorney will be unable to act if they are bankrupt or if they are your spouse and you divorce, or they are your civil partner and you terminate the civil partnership. Your Attorney(s) can also change their mind and may not want to act for you. If this is the case, they must tell you and the Office of the Public Guardian (OPG).
4. When an Attorney can act. Once your LPA is registered your Attorney(s) can act before you lack capacity and after you lack capacity however, you may restrict your Attorney(s) to only act when you lack capacity within your LPA. There is no one point at which you are treated as having lost capacity to manage your property and affairs. Your Attorney(s) must help you to make as many of your own decisions as you can. When decisions have to be taken for you, your Attorney(s) must always act in your best interests.
5. Decisions your Attorney can make for you. An Attorney may make any decision that you could make about your property and affairs, for example buy or sell property, manage investments or carry on a business. They may also access personal information.
6. Restricting the powers of your Attorney(s) or adding conditions. You can put legally binding restrictions and conditions on your Attorney(s)' powers and the scope of their authority in the LPA. But these decisions may still need to be made and other people will have to decide for you. That could involve going to the Court of Protection and a decision being made in your best interests. However, if you are happy to give your Attorney full access to all your property and financial affairs, simply tick the general authority box.
7. Giving guidance to your Attorney. You can also give guidance to your Attorney(s) in your LPA. This is not legally binding but the Attorney should take into account your expressed wishes when they are making decisions for you, if it reasonable to do so.
8. Paying Attorneys. An Attorney is entitled to be reimbursed for out-of-pocket expenses incurred in carrying out their duties. Professional Attorneys, such as solicitors or accountants charge, for their services. You should discuss this with your Attorney and record any decision you make about paying your Attorney(s) in the LPA.
9. Notifying other people before registration. You can name up to five people to be notified when an application to register your LPA is made. You do not have to name any but if you do not, two Certificate Providers (see below) are needed and this may delay completion of the LPA. 9.1 Why do I need people to be notified? Selecting people to be notified of an application to register is one of the key safeguards of an LPA. Listing people, known as named persons, allows you to decide at the time you make your LPA who you would like to be notified that registration of your LPA is taking place. Once notified, if the people you choose have concerns about the registration of your LPA – for example they feel that you were put under pressure to make it – they can object to the LPA being registered. 9.2 You are advised to name up to five people if at all possible. You can choose family members or friends or, if you prefer, someone else such as a health or social care worker that knows you. Your Attorneys cannot be named as the persons to be notified.
10. Registering the LPA. Your LPA cannot be used until it has been registered with the OPG. Either you or your chosen Attorney(s) can apply to register the LPA. If you register it immediately it can be used straight away unless you have specified that it should only be used when you lack capacity. Orchard Wills Limited can assist with registration of the LPA, so that the LPA can be used immediately if you wish. Please note that if you wish us to register your LPA a charge applies (please see our Tariff of Charges) .
11. Changing your mind. You can cancel your LPA even after it is registered if you have the mental capacity to do so, by taking formal steps to revoke the LPA. You must tell your Attorney if you do, and if it is registered, you will need to ask the OPG to remove it from the register of LPAs.
12. The Certificate Provider. A Certificate Provider is a person that you must select to complete a Certificate in the LPA form which confirms that you understand the LPA and that you are not under any pressure to make it.
You will need to choose a suitable person to be your Certificate Provider. They can either be a trusted friend who you have known for two years or more, or they can be a registered healthcare professional, social worker, barrister, solicitor, advocate or an Independent Mental Capacity Advocate (IMCA). Please note that some professionals may make a charge for completing this Certificate.
Your Certificate Provider must not be
- a member of your or your Attorney's family;
- a business partner or paid employee of you or your Attorney(s);
- an Attorney appointed in the LPA made by you;
- an owner, director, manager, or an employee of a care home in which you or your family member lives; or
- a director or employee of a trust corporation appointed as Attorney in the LPA
Please note: if you choose not to notify anyone when an application to register your LPA is made, you will need to choose two Certificate Providers.
Whilst written guidance will be provided for non professional Certificate Providers, you should be aware that your Certificate Provider will need to discuss with you your reasons for making an LPA, and to confirm that you have not been pressured into making it by your Attorney.
Please note that the Certificate is a vital part of the LPA document. Without it, the LPA is not valid and cannot be registered.
General Power of Attorney
A General Power of Attorney (GPA) operates only whilst you have the capacity to make decisions on your own behalf. This may be because you would like someone to take specific steps on your behalf, for example operate a bank account or buy or sell property, or you may wish to give your Attorney the power to make any decisions which you would make.
A GPA can be operated under your direction if you wish, though this is not normal for a GPA, for example, if you are in hospital and you wish your Attorney to write some cheques for you. It is important that you consider how a GPA might be useful for you and stipulate any directions you have in the Application Form so they can be incorporated.
A GPA can be revoked using a Deed of Revocation in the future. Please refer to a solicitor or a financial adviser, if this is required.
Because the powers you give your Attorney to act under a General Power can be very wide, including the ability to do anything you could do with your finances and property, you should be entirely happy and trust your choice of Attorney(s). A GPA gives an Attorney autonomy to make decisions about your affairs without reference.
A GPA can be operated under your direction if you wish, though this is not normal for a GPA, for example, if you are in hospital and you wish your Attorney to write some cheques for you. It is important that you consider how a GPA might be useful for you and stipulate any directions you have in the Application Form so they can be incorporated.
A GPA can be revoked using a Deed of Revocation in the future. Please refer to a solicitor or a financial adviser, if this is required.
Because the powers you give your Attorney to act under a General Power can be very wide, including the ability to do anything you could do with your finances and property, you should be entirely happy and trust your choice of Attorney(s). A GPA gives an Attorney autonomy to make decisions about your affairs without reference.
Why not let Orchard Wills Ltd prepare your Lasting Power of Attorney for finance and property. We make the process quick and easy with a set fee for all work undertaken, and we can visit you In your own home if required or you can visit us in our office.
You can only set up a Lasting Power of Attorney when you have mental capacity. Once you've lost capacity, it's too late. Remember even with an LPA you have not lost control of your finances while you are still able to look after them.
If you have any further questions about whether it is the right time to do a Lasting Power of Attorney and discuss your individual circumstances.
Call Debbie Hall
01234 713938
Orchard Wills Ltd
Unit 2
Stanley Court
Olney
Bucks
MK46 5NH