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What is a Lasting Power of Attorney?

A lasting power of attorney (LPA) is a legal document that allows someone to give another person(s) the legal authority to make decisions on their behalf, if, at sometime in the future they are unable to make decisions themselves.

An LPA is a prescribed legal form that allows someone (the Donor) to choose someone else (the Attorney(s)) to make decisions  about things such as property and financial affairs and health welfare at a time in the future when the donor is no longer able to make those decisions, (lack of mental capacity) or wishes to have help in making those decisions. 

It is now become more commonplace for parents and children to plan ahead and set out in advance what they would like to happen if someone becomes unable to make decisions for themselves in the future.

Sometimes people have not planned ahead and it is the duty of their children or relatives to recover an unpleasant situation through the Court of Protection, which is very expensive, and more restrictive.

If the Donor can still make decisions but it is getting more difficult there is no time to waste. A Donor HAS TO HAVE MENTAL CAPACITY to grant a Lasting Powers of Attorney; ie. understand who they are appointing, the implications of what they are doing and what they are signing.

There are two types of LPA

  • A property and financial affairs LPA is for decisions about finances, such as selling the Donor's house or managing their bank account, paying bills, care fees etc; and
  • A health and welfare LPA is for decisions about both health and personal welfare, such as making decisions about someone's care requirements and medical treatment.

An Attorney(s) is appointed to make decisions as if they were the Donor themselves. An Attorney(s) must act in the Donor's best interests.

Who can make an LPA?

Anyone aged 18 or over, with the capacity to do so, 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.

Parties to an LPA

A Donor

is someone who gives an LPA appointing an Attorney(s) to make decisions about his/her health and welfare, property and financial affairs or both.

An Attorney

is the person(s) chosen to make decisions about either health and welfare or property and financial affairs or both. (usually family).

A Replacement Attorney

is the person chosen to replace the Attorney(s) if that Attorney(s) is no longer able to act on behalf of the donor.

A Named Person (Optional)

is someone chosen by the Donor to be notified when an application is made to register their LPA. They have the right to object to the registration of the LPA if they have concerns about the registration. There is no longer a legal requirement to appoint a Named person(s).

A Certificate Provider

is someone who must confirm that the Donor understands the LPA and that the Donor is not under any pressure to sign it. This is most commonly a friend/neighbour, however, suitably qualified professionals eg Doctor, can fulfil this role.

 

Registration of an LPA

An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. An unregistered LPA will not give the Attorney(s) any legal powers to make a decision for the Donor.

The Donor (providing the donor still has mental capacity) or the Attorney(s) can apply to register it straightaway or it can be registered at a later date.

(If it is not registered straightaway it can be registered later by the attorney(s) even if the donor has lost mental capacity).

Most are registered straightaway, but many are not registered until a later date, as and when they are required.

The registration fee charged by the OPG is a "Three tiered fee" based on the "Donor's Income".

Over £12,000 income per annum                                                                             £82 per document.

Under £12,000 income per annum (we can apply for a 50% discount)                 £41 per document.

In receipt of certain benefits (we can apply for a total exemption of the fee)      £0 per document.

 

The Mental Capacity Act 2005

The Mental Capacity Act 2005 for England and Wales provides a framework to empower and protect people who may lack capacity to make some decisions for themselves. It makes it clear who can take decisions in which situations, and how they should go about this. It also allows people to plan ahead for a time when they may lack capacity. It will cover major decisions about someone's property and affairs, healthcare treatment and where the person lives, as well as everyday decisions about personal care (such as what the person eats), where the person lacks capacity to make those decisions themselves.