Lasting Power of Attorney
A lasting power of attorney is a legal document that lets you appoint someone you trust as an ‘Attorney’ to make decisions on your behalf. It can be drawn up at any time while you have capacity, but has no legal standing until it is registered with the Office of the Public Guardian (OPG). A registered LPA can be used at any time by the Attorney, whether you have the mental capacity to act for yourself or not.
Enduring Power Of Attorney (EPA)
Lasting Powers of Attorney (LPA) replaced the EPA on 1st October 2007. A person given power under an EPA before 1st October 2007 can still use it and apply to have it registered If you have an unregistered EPA and still have the capacity to make decisions for yourself you can make a Personal Welfare LPA to run alongside it.
Different Types Of LPA
A Property and Affairs LPA allows your Attorney(s) to make decisions on your behalf about your property and affairs (subject to any restrictions and conditions imposed by the LPA), including paying your bills, collecting your benefits or other income, or selling your house. It does not allow the person you have chosen to make decisions about your personal welfare.
A Health & Welfare LPA allows your Attorney to make decisions on your behalf about your personal welfare (subject to any restrictions and conditions imposed by the LPA), including whether to give or refuse consent to medical treatment on your behalf and deciding where you live. Those decisions can only be taken on your behalf when you lack the capacity to make them yourself, for example it you are ill, unconscious or due to the onset of a condition such as dementia. It does not allow your Attorney(s) to make decisions about your property and affairs
How Is It Different From An Ordinary Power Of Attorney?
An ordinary power of attorney is no longer valid if you become mentally unable to manage your affairs, but an LPA can be used in this situation, provided it has been registered with The Office of the Public Guardian (OPG).
Is It Safe To Make An LPA?
LPAs are very powerful documents. You need to remember that the person you appoint as your attorney may have complete power over your money, savings, investments and Property. If you become mentally incapable YOU are unlikely to be able to check what they are doing.
When choosing an attorney, consider how well they handle their own money, whether you can trust them to act in your best interests and if they will use your money to best provide for your needs.
You can, as a safeguard, appoint more than one attorney. You can also consider appointing them jointly so they have to act together. You can also add conditions to the LPA when you make it, for example, requiring the attorney to provide accounts for each year to someone independent such as an accountant.
Note that although you can make the LPA at any time, it cannot be used until it has been registered with the OPG.
Who Can Make An LPA?
Anyone can make an LPA, as long as they can understand how to do so and what it does. The legal test is to ask whether you can understand that:
- The attorney can take complete power over your affairs if you become mentally unable to manage them for yourself.
- The attorney will, in general, be able to do anything with your property that you could have done
- The power will continue if you are, or become, mentally incapable and it can only be revoked by the Court of Protection.
- If YOU can understand these points, you can make an LPA. But if you are in any doubt you should get medical or legal advice.
Who Can Be An Attorney?
Your attorney can be almost anyone you choose who is willing to act for you. They must be at least 18 and must not be bankrupt when they sign the form or at any time in the future. Some trust companies (often parts of banks) can also act as attorneys. But someone who holds office (for example Director of Social Services) cannot be an attorney.
What Can An Attorney Do?
If you decide to give your attorney ‘general authority’, they will be able to do everything you could do – for example, signing cheques, paying bills, dealing in shares or buying and selling houses.
Can I Restrict What The Attorney Does?
You can say that they can only deal with the parts of your affairs which you list on the form. You can also add any restrictions or conditions you want.
You may want to add a condition to your LPA so that your Attorney(s) must act in a particular way, For example, you could say that your Attorney must always talk to a particular person before making a decision about where you live. You may also want to limit the powers your Attorney has. For example, you could Include a restriction that your Attorney can only make decisions about your social care but not about any aspect of your healthcare or vice versa. You need to write those conditions or restrictions on the LPA form in the space provided.
When Do The Powers Of The Attorney Begin?
It depends what you want. You can, for example, say that the attorney cannot act until the power is registered, or until they believe you are becoming mentally incapable. If you don’t set any restrictions, the attorney can act straight away using unregistered powers.
Can I Change My Mind?
You can cancel or end the power at any time, as long as you are able to do this. If the LPA has been registered with the Office of the Public Guardian a Deed of Revocation Form can be submitted to the OPG and the LPA will be revoked (cancelled)
Can Attorneys Make Gifts From My Money?
They can make limited gifts, as long as there is no restriction In the LPA preventing this. They can make seasonal gifts (for example, Christmas presents), or gifts on anniversaries, births or marriages / civil partnership, to people who are related to or connected with you, but the value of the gift must be reasonable compared to everything you own, and have previously given.
Can Attorneys Charge?
If you appoint a professional attorney (for example a solicitor, accountant or bank) they are entitled to charge for their services. Non-professional attorneys would not be expected to charge, although they should not be left out of pocket either. LPA’s are very powerful documents, and we therefore always recommend that you take professional advice before undertaking this procedure. Our advisers are happy to discuss this at length with you and your family, and anybody else you think should be informed.