Lasting Powers of Attorney (‘LPAs’) have become very important legal documents since their introduction in 2008 as more and more financial institutions and care providers have demanded to see them.
At Edmondson Hall we are pleased to be able to advise on all aspects of these important legal documents including what they are, the advantages of making them, how to complete them and how to have them registered. We also have a lot of experience in advising the persons appointed in the documents (‘Attorneys’), as to how to manage the property, finances and personal care of the person who made the documents (the ‘Donor’) after the documents have been registered.
This article explores and explains the issues involved in making LPAs, having them registered and what happens next.
What are Lasting Powers of Attorney?
They are legal documents in which the Donor gives an Attorney, or Attorneys, the authority to make decisions on behalf of the Donor if the Donor ever loses the mental capacity to do so themselves.
There are two types of LPAs, Property and Financial Affairs and Health and Welfare.
What happens if I do not make Lasting Powers of Attorney?
If you become mentally incapable of making decisions for yourself and you have not made LPAs then someone with a close connection to you such as a family member would have to apply to Court for a Court Order authorising them to make decisions for you. This is a much longer and more complex process than making LPAs.
If there is no one willing to do that for you, then the Local Authority for the area in which you live usually makes the application for the Court Order.
What is a Lasting Power of Attorney for Property and Financial Affairs?
This document gives the Attorney the legal authority to make decisions regarding the property and finances of the Donor.
This includes decisions such as whether the Donor is living in suitable accommodation and if not, whether the current property needs to be sold and a new property bought for the Donor to live in.
The Attorney will also have the legal authority to manage the Donor’s bank/building society accounts and other investments. The Attorney must always act in the Donor’s best interests in making financial decisions for the Donor and the Attorney must therefore manage the Donor’s finances to ensure that the Donor’s bills are paid on time and where possible, to invest the Donor’s money to maximise the Donor’s money and income.
What is a Lasting Power of Attorney for Health and Welfare?
This document gives the Attorney the legal authority to make decisions regarding the personal welfare of the Donor.
This includes decisions such as what care and support the Donor should receive and where that should be. The Attorney would have the authority to decide where the Donor should live and whether the Donor should move into long term care. The Attorney would also be able to have access to the Donor’s medical notes and to decide whether or not treatment should be given to the Donor to keep them alive in circumstances in which the Donor could not communicate.
The LPA for Health and Welfare therefore includes what is known as an ‘Advanced Medical Directive’ or ‘Living Will’, which are documents setting out someone’s wishes in the event they need medical treatment to prolong their lives, but cannot tell the medical attendants whether they want to receive that treatment.
The Attorney cannot make these decisions under the LPA for Property and Financial Affairs and it is therefore important to make both types of LPA so that your Attorney has the ability to make the full range of decisions for you.
Who should I appoint as my Attorneys?
Most people appoint close relatives or friends to be their Attorneys. It is essential that you trust each of your Attorneys to make good decisions for you and that they do so in your best interests. If you do not have any such persons in your life then professionals such as solicitors could be an option.
You can appoint as many people as you want to be your Attorneys, but it is usually not a good idea to appoint more than 4 people for practical reasons.
It is possible to appoint one or more persons to act for you as Attorneys, but if they were not able to do so for whatever reason, then you could appoint backup persons as ‘Replacement Attorneys’. For example, many people appoint their husband, wife or Civil Partner as the Attorney, with their children appointed as Replacement Attorneys.
If you appoint more than one Attorney or Replacement Attorney, then you need to decide how they should work together. They can act on what is known as the ‘joint’ basis, the ‘joint and several’ basis or the ‘jointly for some decisions and jointly and severally for other decisions’ basis. It is sensible to take legal advice as to which option to choose.
In a situation in which you have more than one Attorney and a Replacement Attorney and one of your Attorneys stops acting for whatever reason, you must decide whether the Replacement Attorney is to act alongside the continuing Attorney or whether the Replacement Attorney would only have authority to act if there are no remaining Attorneys.
You can place ‘Restrictions’ on your Attorney relating to what they can do for you but the risk of doing so is that the LPAs may be rejected for registration because they are too restrictive of the Attorney’s legal powers. It is therefore safer to word Restrictions as ‘Guidance’ and you should take legal advice before doing so.
What is the process to make Lasting Powers of Attorney?
Each LPA has 15 standard pages and sometimes, but not always, includes continuation pages.
There is a strict order for signing each LPA with the Donor signing first, then the ‘Certificate Provider’ second and finally the Attorneys and Replacement Attorneys last. The Donor’s signature and each of the Attorneys’ and Replacement Attorneys’ signatures must be witnessed by an independent adult who must also sign the LPA.
The Certificate Provider must be someone who has either known you well for 2 years or has relevant professional skills to certify that you understand the LPA and that you are not being forced to sign it. The Certificate Provider cannot be related to you or be an Attorney or Replacement Attorney in the LPA.
When all parties have signed the LPAs in the correct order, the Donor must sign a registration form for each LPA. The original LPAs and the registration forms must be submitted to the ‘Office of the Public Guardian’ (‘OPG’) for review and registration. Each registered LPA is given a unique registration number to allow it to be identified.
There is a registration fee for each LPA which is currently £110.00. You may be exempt from paying the fee or entitled to a reduction depending on your savings and income at the time of making the application to register the LPA.
The OPG usually takes at least 4 weeks to acknowledge receipt of the registration application. The OPG then must wait 4 weeks from acknowledging receipt before registering the document as there is a statutory waiting period during which anyone can object if they have the reasonable grounds to do so. The OPG then normally sends the registered document within 4 weeks of registration to the person named to receive it. The registration process is therefore at least 3 months.
When can the Lasting Powers of Attorney be used and what happens after registration?
LPAs can only be used if they are registered by the OPG.
The Property and Financial Affairs LPA can be made by the Donor to allow it to be used by the Attorney as soon as it is registered, with the Donor’s agreement. If the Donor does not make the LPA in that way or does not agree to the Attorney making a decision, then the LPA can only be used if the Donor loses mental capacity.
The Attorney must have the agreement of the Donor to use the LPA if the Donor has the mental capacity to make a decision for themselves. It can be useful for the Donor to make the document in this way to avoid having to wait for a medical professional to certify mental incapacity for each decision in a scenario where the Donor is only sometimes lucid enough to make decisions.
The Health and Welfare LPA can only be used if the Donor has lost mental capacity.
For Property and Financial Affairs LPAs, if the Donor has either lost mental capacity to make decisions or the Donor agrees to the Attorney using the LPA, an official OPG copy or solicitor certified copy of the LPA should be given to each of the institutions in which the Donor holds money or investments, so that the Attorney can manage the Donor’s finances directly.
In the event that the Donor has lost mental capacity, an official OPG copy or solicitor certified copy of the Health and Welfare LPA should be given to the Donor’s GP and to any care provider so that the Attorney can manage the Donor’s personal welfare directly.
It is also a good idea for the Attorney to keep a certified copy of the Health and Welfare LPA as if the Attorney ever needs to decide whether or not the Donor should receive medical treatment necessary to keep the Donor alive, there may not be time to get a copy from the GP.
The Attorney should always keep notes and receipts for any decisions they make for the Donor.
What happens if my Attorneys do something wrong?
Your Attorneys must always act in your best interests and when you have mental capacity they must try to involve you in all decisions they make for you.
If your Attorneys fail to act in your best interests then they will be investigated by the OPG, removed from their role and could face prosecution.
Why should I use a solicitor to make Lasting Powers of Attorney?
A solicitor has had specific training in the preparation of LPAs and the process of their registration. This is likely to save you a lot of time and hassle.
The LPA documents may appear to be simple, but they are also powerful and do not include a detailed explanation of the laws surrounding LPAs, mental capacity, mental health or Attorney powers. It is therefore strongly recommended that you receive and understand legal advice before making LPAs.
A solicitor will be able to confidently guide you through each stage of the process and provide important legal advice on the various issues which may arise at the time of making the LPAs and in the future.
Solicitors are also independent professionals who will act in your best interests as the Donor and are unlikely to be challenged as Certificate Providers.
Would you like to make a Lasting Power of Attorney? If so, please click here to download our questionnaire.
Barry Crabtree-Taylor – Head of Private Client
Stephen Roberts – Private Client Solicitor
Lynda Allet – Private Client Paralegal
Edmondson Hall Solicitors and Sports Lawyers
25 Exeter Road, Newmarket, Suffolk, CB8 8AR
01638 560 556