Lasting Powers of Attorney
Lasting Powers of Attorney (LPAs) are legal documents where a person gives authority to another person (known as an ‘Attorney’) to make certain decisions on their behalf. There are two different types of LPA – a ‘Property and Financial Affairs LPA’ and a ‘Health and Welfare LPA’. Both documents are recommended as they cover different types of decisions.
The Property and Financial Affairs LPA enables you to appoint someone who will be able to make decisions in relation to your financial affairs. Examples of what an attorney can usually do under this type of document include writing cheques, selling your property and managing bank accounts and investments. Attorneys can make decisions on your behalf if you are mentally incapable, or if the document is unrestricted, they can also act for you if you are capable and give your consent.
The Health and Welfare LPA enables you to appoint someone to make personal decisions on your behalf, for example deciding what you wear, choosing a nursing home or refusing life sustaining medical treatment. These types of decisions can only be made on your behalf if you have lost mental capacity.
With both types of LPA it is possible to place restrictions on the types of decisions your Attorneys can make. For example, in a Property and Financial Affairs LPA you may wish to state that your Attorneys cannot sell your house, or that they can only act if you have lost mental capacity. When making a Health and Welfare LPA you may not want them to make decisions relating to life sustaining treatment, or you may want to rule out a specific type of life sustaining treatment such as chemotherapy. With both types of LPA you can also include non-legally binding guidance to help Attorneys when making certain decisions.
The advantage of having LPAs in place is that should you become mentally incapable of managing your affairs there will be someone who you trust and who you have chosen to make those decisions for you. Otherwise it may be necessary for an application to be made to Court for an order allowing a person to make decisions on your behalf. This is both costly and time consuming. Many people appoint family members as their Attorneys, but you can generally appoint anyone you choose, so long as they are happy with the duties they would be taking on and are over 18. The most important criteria is that your chosen Attorneys are trustworthy and have the appropriate skills to make the relevant types of decisions on your behalf. Making LPAs does not mean that you are unable to manage your own affairs. You can carry on making your own decisions for as long as you are able to. They do, however, provide peace of mind.
The two different types of LPA provide very different powers. Therefore if you wish to allow someone to look after your financial affairs and your health and personal welfare matters, you have to create two different LPA documents. You may have the same Attorneys under both types of documents or different Attorneys. Remember, some decisions, such as choosing a care home, may involve an overlap between the two types of document and so if you have different Attorneys, you must be sure they are able to work together.
How do you create an LPA?
When making an LPA there are several stages and it is important to remember that your LPA will need to be registered with the Office of the Public Guardian before it can be used by your Attorneys. You will need to consider what type of LPA you wish to make and whether you wish to impose any restrictions. You also need to think about the following:
- Appointing your Attorneys – Who? How many? How they can act? Do you wish to choose a
replacement in case one of your Attorneys should become unable to assist you at the
appropriate time?
- People to be told – Up to a maximum of five people can be informed when your LPA is
registered as an additional safeguard for you.
- Certificate Provider – An independent person has to sign the LPA to confirm that you
are fully aware of the implications of the LPA document and the power you are giving
your Attorney. Naturally it is imperative that this person understands LPAs in detail.
We can assist with this service.
- Registering the LPA with the Office of the Public Guardian – When should you
register?
Attorneys
One of the most important aspects of making an LPA is selecting your Attorney(s). They must be trustworthy, suitable, willing and your choice of a person able to act on your behalf should the need arise. Whoever you appoint has a duty to act in your best interests. You can appoint more than one person and if you do, then they can act in one of the following ways:
Joint
This requires that your Attorneys must act together regarding all decisions. This can be preferred for certain types of decision and for certain family situations or if both a personal and professional approach is desired. However it can prove very difficult if an Attorney is unable to act due to their location or if they become ill. If one Attorney is unable to act, the other cannot progress alone, unless you have named a Replacement Attorney.
Joint and Several
This allows your Attorneys to act together but also allows an Attorney to make a decision without the agreement or potentially without the knowledge of the other Attorney(s). This is very useful when, for example, one Attorney does not live locally. Whether the Attorneys act together or independently on each issue is entirely at their own discretion.
Jointly in some areas and Jointly and Severally in other areas
This option enables the donor to select certain issues where your Attorneys must act together and other areas where they are able to act independently of each other. For example, you may decide that generally your Attorneys are allowed to act without consulting the other, but you may wish to specify that should they ever need to do certain acts, for example sell your house, then they must act together for that matter.
Giving Notice
On both types of LPAs you can name up to five people who will notified at the time your LPA is going to be registered. These people can be friends or family but must not be your Attorneys. Should one of the people who receives a notice believe that there is a problem with the LPA (for example it was created whilst you were under undue pressure from one of your Attorneys, or that at the time you made the document you did not fully understand the power you were giving your Attorneys) they will be able to object to the registration. It is not compulsory that you select people to be notified when your LPA is registered. However if you do not then you will need to appoint two individual certificate providers rather than one.
Certificate Providers
The role of the certificate provider is to complete part of your LPA form, whether Health and Welfare or Property and Financial Affairs, to confirm that they believe you understand the implications of the LPA document and that you are not being placed under any undue pressure to make the document. You only need one certificate provider unless you have decided not to tell others when the document is being registered (see paragraph above) where you will need to appoint two certificate providers.
A certificate provider can be someone who has known you personally for over two years, or can be a professional – for example a GP or a solicitor.
Registering the Power
When an LPA has been completed it needs to be registered with the Office of the Public Guardian before it can be used by the Attorneys. You do not have to register it straight away. You may wish to put the forms away and only ever register an LPA should the need arise for the Attorneys to actually use the document(s). It is important to understand that even if you do register an LPA immediately you can continue to run your own affairs (both regarding Property & Financial Affairs and Health and Welfare) until you lose the capacity to be able to manage them yourself.
Each LPA needs to be registered individually and a fee of £120 will apply to each.
When an LPA has been registered and returned by the Office of the Public Guardian, you are then unable to make any changes to it. However, you can always revoke an LPA if you change your mind about its contents (even after it has been registered) provided you have the mental capacity required to do this.
To find out more information contact Sarah Palmer or Sarah Harvey on 01256 354481.
